in law, (mortuum vadium, or dead- pledge,) is where a man borrows of another a speci- fic sum (e.g. 200 l.) and grants him an estate in fee, on condition that if he, the mortgagor, shall pay the mortgagee the said sum of 200 l. on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; or, as is now the more usual way, that the mortgagee shall re- convey the estate to the mortgagor: in this case the land which is so put in pledge, is by law, in case of nonpayment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but abso- lute. But, so long as it continues conditional, that is, between the time of lending the money, and the time allotted for payment, the mortgagee is called ten- nant in mortgage. But as it was formerly a doubt, whether, by taking such estate in fee, it did not be- come liable to the wife's dower, and other incumbran- ces, of the mortgagee, (though that doubt has been long ago overruled by our courts of equity,) it there- fore became usual to grant only a long term of years, by way of mortgage; with condition to be void on re- payment of the mortgage-money: which course has been since continued, principally because on the death of the mortgagee such term becomes vested in his per- sonal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mort- gage may happen to be.

As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be dis- posessed, upon performance of the condition by pay- ment of the mortgage-money at the day limited. And therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment; when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being af- terwards evicted by the mortgagor, to whom the land is now for ever dead. But here again the courts of e- quity interpose; and though a mortgage be thus for- feited, and the estate absolutely vested in the mortga- gee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to re-call or redeem his estate; paying to the mortgagee his principal, interest, and expenses: for otherwise, in strictness of law, an estate worth 1000 l. might be forfeited for non-payment of 100 l. or a less sum. This reasonable advantage, al- lowed to mortgagors, is called the equity of redemp- tion; and this enables a mortgagor to call on the mort- gagee, who has possession of his estate, to deliver it back, and account for the rents and profits received, on payment of his whole debt and interest; thereby turning the mortuum into a kind of vivum vadium; (see Vadium). But, on the other hand, the mort- gagee may either compel the sale of the estate, in or- der to get the whole of his money immediately; or else call upon the mortgagor to redeem his estate pre- sently, or, in default thereof, to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall. And al- so, in some cases of fraudulent mortgages, the frau- dulent mortgagor forfeits all equity of redemption whatsoever. It is not, however, usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment, and take the land into his own hands, in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was where the possession of the thing pledged remained with the debtor. But, by statute 7 Geo. II. c. 20. after payment or tender by the mortgagor of princi- pal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to re-assign his securities. In Glanvil's time, when the universal me- thod of conveyance was by livery of seizin or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the cre- ditor; si non sequatur ipsius vadi traditio, curia domini regis hujusmodi privatas conventiones tucri non solet: for which the reason given is, to prevent subsequent and fraudulent pledges of the same land; cum in tali cafa posset cadere res pluribus aliis creditoribus tum primum tum posteriorum invadendi. And the frauds which have a- risen, since the exchange of these public and noto- rious conveyances for more private and secret bar- gains, have well evinced the wisdom of our ancient law.