The language of the law. Part Latin, part Anglo-Saxon, all confusing.
You have to love a lot of things to be really good as a genealogist.
Family, for sure.
History, oh yes.
Words — and you already know The Legal Genealogist is going to legal terminology here — words that help us understand what’s going on in the records that we find.
Words like gage.
The first definition you’ll find online today is usually “a token of defiance; specifically : a glove or cap cast on the ground to be taken up by an opponent as a pledge of combat.”1
Which — if we assume that it’s a constituent part of the word — wouldn’t help explain the term mortgage at all.
So let’s back up a bit.
Gage, in legal terms, was something entirely different. As a verb, it meant: “To pawn or pledge; to give as security for a payment or performance; to wage or wager.”2
And as a noun: “In old English law. A pawn or pledge; something deposited as security for the performance of some act or the payment of money, and to be forfeited on failure or non-performance.” And: “In French law. The contract of pledge or pawn; also the article pawned.”3
And so a mortgage is “a dead-gage or pledge; for, whatsoever profit it yields, it redeems not itself, unless the whole amount secured is paid at the appointed time.”4 Or, stated more fully, a mortgage is:
An estate created by a conveyance absolute in its form, but intended to secure the performance of some act, such as the payment of money, and the like, by the grantor or some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance.
A conditional conveyance of land, designed as a security for the payment of money, the fulfillment of some contract, or the performance of some act, and to be void upon such payment, fulfillment, or performance.
A debt by specialty, secured by a pledge of lands, of which the legal ownership is vested in the creditor, but of which, in equity, the debtor and those claiming under him remain the actual owners, until debarred by judicial sentence or their own laches.5
So… as genealogists we see mortgages all the time (or we should… we’re not looking just at the deed books, are we? We’re always checking to see if there are separate mortgage books too, right? Right?) — and we want to be sure we understand what’s going on. We want to see if somebody had to borrow money to buy the property, or later put the property up as security for a loan. Either would cause there to be a mortgage on the property.
Now, “The foregoing definitions are applicable to the common-law conception of a mortgage. But in many states in modern times, it is regarded as a mere lien, and not as creating a title or estate.”6 Today, generally, it’s not an actual change in the title to the land, but only “a pledge or security of particular property for the payment of a debt or the performance of some other obligation…”7
But even today it’s often recorded in a different set of record books from the deed itself.
So… as genealogists we’re not looking just at the deed books, are we? We’re always checking to see if there are separate mortgage books too, right? Right?