SHORT DEEDS : MORTGAGES.
TICE Act relating to what are called " Outstanding Terms" does not come into operation until the 1st of January 1845; but the Acts giving Short Leases and Short Conveyances* have been in force since last Wednesday. We have reason to believe that many lawyers have already acted on them, in whole or in part. That there may be many special cases to which the abbreviated forms do not apply, is quite possible. But if in simple cases, two short enactments (seven clauses in one act, and six in the ether, excluding the mere formal clauses) have lopped off verbiage, the * Spectator, 80th August 1845; pp. 829-1380.
growth of centuries, the merits of brevity, simplicity, and efficacy may justly be ascribed to them. Conveyances and deeds are un- dergoing the same process which common-law pleadings under- went in 1834. A lease may now be written on a sheet of letter- paper ! a conveyance of land, worth one pound or one hundred thousand pounds, may be transferred in ten lines ! This fully justifies our remarks on the statutes in question, and satisfies us, that when the public has been made acquainted with their pre- visions, they will materially influence all the dealings with pro- perty within their range. Few—as few as possible—go to law ; but many want conveyance-deeds, and most people want leases. The only complaint will soon be, that these acts apply only to two kinds of deeds, and that in all other transactions parties are bur- dened with the old circumlocutions.
There is one class of deeds to which the abbreviated form appears peculiarly, applicable—Mortgages. In itself land is the best.of all securities for a debt. A lien over money, or any other of the things which, in the language of the Roman law, ' pondere, nu- mero, mensura constant," is but little better than a personal se- curity. It is difficult to establish the personal identity (if the phrase is admissible) of a pound of pepper, and impossible to es- tablish it in the case of that abstract idea a pound of money. But land is fixed, enduring, and defined ; land remains though money be spent ; land alone survives political convulsions and changes of dynasties. Yet land is perhaps at this moment the least acceptable security a man can offer : mortgages are rarely effected. For this there are various causes. The time required to execute a deed of mortgage in due form renders land una- vailable as a pledge in sudden emergencies. When the debt is satisfied, there must be a reconvegance of the mort- gaged premises ; which is often difficult, and always expen- sive. Again, the law of mortgage renders securities on land less available to the creditor than securities in the form of bills. In the latter case, he can transfer his hold upon the debtor to another by simple indorsement ; but he cannot so easily make a mortgage available for the purpose of commerce. This peculiar fea- ture of landed securities would keep them at a lower value in the mar- ket than others however much the forms of mortgage-deeds mi ght be simplified. So long as mortgages cannot pass from hand to hand as easily as bills, bonds, and government stock, the owner cannot expect to get full value for his property in the lending-market. Lastly, monied men are averse to mortgages because of the im- pediments the law throws in the way of realizing their security should the debtor fail to keep time. An action on a protested bill cannot be staved off by extraneous pleas • but the creditor who would foreclose on a mortgage may be, and for the moat part. is, subjected to the chicanery of an action of account. To raise landed security to its true value, a mortgage ought to be placed on the same footing as a bill—" Pay your debt, or pay the forfeit : if you have counter-claims' you can bring an action afterwarclsi"
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Mortgager and mortgagee have an equal interest in the improve- ment of mortgage-deeds and the law of mortgage : everything that adds to the security of the latter adds to the value of the former's property. The objectionable character of landed security, in the present state of the law, has of late years given rise to a substitute for a mortgage, known by they name of " equitable mortgage." It consists simply of a deposit of- deesometimes with and sometimes without a memorandum explaining the ?a transaction. This was always an unsatisfactory kin of security; and a recent judgment of Lord Cottenham, who decided that a " judgment-debt " was to be preferred to an " equitable mort- gage,' has destroyed all confidence in it. Some of these objections to mortgage-securities go deeper than the mere form of deeds. To remove some of them, the law of mortgage must be modified ; and to get rid of the clumsy and needlessly expensive contrivance of pledging the whole to repay the value of a small part, would require interference with the law of tenure. But eventhough public opinion should prove as yet too unenlightened to support these more extensive reforms a great boon would be conferred on the whole trading and landed community by an act giving a short form of mortgage, grounded on long-settled and approved practice. It needs not alter the law at all, but simply bring within everybody's reach, condensed into a few lines, those familiar forms which are applicable to simple cases. The difficult, expensive, and useless reconveyanee, might be dispensed with : a simple receipt for the mortgage- money endorsed on the deed is all that is necessary. For the security of the creditor; no other evidence of partial payments or counter-claims than such an endorsement ought to be permitted when the penalty of the deed is executed. And if a mortgage may be thus satisfied, it may also be transferred by endorsement, so that the last-specified holder of the instrument might be the owner of the mortgage-debt.
Reforms such as are here suggested would be an easy task for the Law Amendment Society, and an effort worthy of those law- reformers who gave us the Real Property Acts of 1835, and, by opening up the whole subject, have shown us the way to greater and more beneficial alterations. But to obtain these, some move- ment is necessary on the part of the landed and more especially of the trading community. A body of lawyers—casting aside the prejudices and disregarding the selfish tenets of then class, or taking a wide and just view of them—have- come forward and shown themselves both able and willing to undertake the task of law-reform : they are entitled to the support of those who are to be benefited by their Labours.
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