An Introduction to the History of the Land Law

By A. W. B. Simpson | Go to book overview

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The later development of Commercial Interests in Land

The Mortgage

THE post-medieval law of mortgages falls into two parts -- the changes in the form of the mortgage, and the transformation in its nature which was brought about through the intervention of the Chancellor. The former is relatively unimportant. From a very early period until the 1925 legislation introduced the charge by way of legal mortgag1 the law of property has never known a mortgage as such; mortgages have always pretended to a greater or less degree to be something which they are not, for they have been created by the manipulation of ordinary common law estates. Conveyancers have employed a large number of different techniques in order to make land into a security for a debt, but after Littleton's day two main forms of mortgage were commonly employed. By the first the mortgagor conveyed his lands outright in fee simple to the mortgagee, with a covenant for re-conveyance if the debt was repaid on time; this is the classical common law mortgage, and it was in general use until 1925. It seems to have come into prominence in the sixteenth century, when the Chancellor became ready to enforce the covenant specifically2 At common law the remedy for breach of covenant was an action for damages only, and it was no doubt the availability of specific performance in Equity which allowed this form of mortgage to supersede the older form of mortgage which it resembles, in which the mortgagor grants a fee simple with a condition for re-entry on payment, instead of a covenant for re-conveyance. The second main form of mortgage involved the grant of a

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1
Law of Property Act 1925, s. 87. See Megarry and Wade, Real Property, pp. 852-3.
2
Or perhaps earlier; see Turner, Equity of Redemption, p. 21, and the Introduction by Hazeltine at pp. xl et seq. There is a case in 1456, Selden Society, Vol. 10, p. 137, Bodenham v. Halle. Cf. Ames, Lectures in Legal History, Lect. XXII.

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