in law, (mortuum vadium, or dead-pledge), is where a man borrows of another a specific sum (e.g. 200l.), and grants him an estate in fee, on condition that if he, the mortgagor, shall pay the mortgagee the said sum of 200l. 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 reconvey 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 absolute. 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 tenant in mortgage. But as it was formerly a doubt, whether, by taking such estate in fee, it did not become liable to the wife's dower, and other incumbrances of the mortgage (though that doubt has been long ago overruled by our courts of equity), it therefore became usual to grant only a long term of years, by way of mortgage; with condition to be void on repayment of the mortgage-money: which course has been since continued, principally because on the death of the mortgagee such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.

As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be dispossessed, upon performance of the condition by payment 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 afterwards evicted by the mortgagor, to whom the land is now for ever dead. But here again the courts of equity interpose; and though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee 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 1000l. might be forfeited for non-payment of 100l. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption; and this enables a mortgagor to call on the mortgagee, 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 VADUM). But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or else call upon the mortgagor to redeem his estate presently, 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 also, in some cases of fraudulent mortgages, the fraudulent 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 principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to re-align his securities. In Glanvil's time, when the universal method 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 creditor; si non sequatur ipsius vadis traditio, curia domini regis bujufmodi privatias conventiones tueri non solet: for which the reason given is, to prevent subsequent and fraudulent pledges of the same land; cum in tali cafa possit cadem res pluribus aliis creditoribus tum prius tum posterius invadiri. And the frauds which have arisen, since the exchange of these public and notorious