Mortgage Law Mort Dead Gage Pledge Essay

9215 words - 37 pages

INTRODUCTION What does MORTGAGE mean? In the word mortgage, the mort- is from the Latin word for death and -gage is from the sense of that word meaning a pledge to forfeit something of value if a debt is not repaid. So mortgage is literally a dead pledge. It was dead for two reasons, the property was forfeit or "dead" to the borrower if the loan were not repaid and the pledge itself was dead if the loan was repaid. In the words of the 17th century English jurist (and apparently etymologist) Edward Coke: "It seemeth that the cause why it is called mortgage is, for that it is doubtful whether the Feoffor will pay at the day limited such summe or not, if he doth not pay, then the Land which is put in pledge vpon condition for the payment of the money, is taken from him for euer, and so dead to him vpon condition. And if he doth pay the money, then the pledge is dead as to the Tenant" The word is 14th century in origin.A mortgage (Law French for "dead pledge") is a device used to create a lien on real estate by contract. It is used as a method by which individuals or businesses can buy residential or commercial property without paying the full value upfront. The borrower (also called the (mortgagor) uses a mortgage to pledge real property to the lender (also called the mortgagee) as security against the debt (also called hypothecation) for the rest of the value of the property....Mortgage is a debt instrument by which the borrower (mortgagor) gives the lender (mortgagee) a lien on property as security for the repayment of a loan.Transfer of property act 1882, deals with mortgage. (Secs 58 to 98) INDIAN BARE ACTS TRANSFER OF PROPERTY ACT, 1882 Defines mortgage as: A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement, which may give rise to a pecuniary liability. Thus against the immovable property assigned as a mortgage, a debt or discharge of some obligation is secured. [Sec. 58(a)] Parties to Mortgage: MORTGAGOR: The transferor is called a mortgagor.MORTGAGEE: The transferee a mortgagee.MORTGAGE MONEY: The principal money and interest of which payment is secured for the time being are called the mortgage-money.MORTGAGE DEED: The instrument (if any) by which the transfer is effected is called a mortgage-deed.References to mortgagors and mortgagees shall be deemed to include to person deriving the title from them respectively [Sec. 59(a)] CREATION OF MORTGAGE Where the principle money secured is one hundred rupees or upwards, a mortgage otherwise than a mortgage by deposit by title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. When the principle money secured is less than one hundred rupees, mortgage may be effected either by a registered instrument signed by the mortgagor and attested as aforesaid, or...

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