in that direction, and their requirements carefully followed. This warning is repeatedly given because of its great importance.

Trespassers.

One who takes wrongful possession of premises without any right whatever to do so, is not a tenant of any sort, but merely a trespasser. He has no rights or claims, and may be ejected at once.

CHAPTER XXV.

REAL PROPERTY, CONCLUDED.

Mortgages-Definition-Explanation of Terms-Mortgage Note-Oral Evidence Admissible to Prove a Mortgage-General Rule of Law as to Admission of Oral Evidence-Foreclosure of Mortgages-Power of Sale Mortgages-Foreclosure in Massachusetts— Improvements on Mortgaged Property-Fixtures— Mortgagor's Interest-Two or More Mortgages on Same Property-Mortgages Should be RecordedMortgages on Personal Property-Statutory Requirements-Foreclosure of Mortgage on Personalty.

Sometimes when it is not desirable to sell or lease real property, a conditional estate may be given in it by a mortgage.

Definition of a Mortgage.

To quote from an eminent authority, "A mortgage at common law may be defined to be 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. It is therefore, an estate defeasible by the performance of a condition subsequent."

That is to say, the owner of real property wishes to obtain money, and another party has money which he is willing to loan on good security. The former, therefore, borrows the money and gives a deed of his property to the latter; but the deed is given on condition that, if the money be repaid at or before a certain time (certain interest being paid for the use of the money meanwhile), the deed shall be void, and the land, or the house, shall become again the property of the original owner.

Explanation of Terms Used.

The party who borrows the money and gives the mortgage-deed of his property is called the mortgagor; the other party is the mortgagee. The mortgagor's right to repay the money and regain the estate at or before a certain day is called his equity of redemption. If the money is not paid and the mortgagee proceeds to take possession of the property, he is said to foreclose the mortgage.

This is, briefly, the common law concerning mortgages. Statutes in some states have somewhat altered their character and incidents, and in all states there are statutes strictly regulating the manner of giving and of foreclosing mortgages, which must always be carefully observed.

Possession of the premises is usually retained until foreclosure by the mortgagor, the law in many states giving him this right; but in other states the right of possession goes at once to the mortgagee, and it is only by special agreement in the mortgage-and such an agreement is frequently made--that the mortgagor can continue in possession.

Any interest in land which is capable of being conveyed

or assigned may be mortgaged; an estate for life or for years as well as one in fee simple.

The Mortgage Note.

A promissory note, acknowledging the receipt of the money and agreeing to pay it with interest, is usually given by a mortgagor simultaneously with the mortgage-deed, and this is called a mortgage note. [For Promissory Notes, see Chapters 11 and 12.] In some states, as in New York, a bond is given instead of a note. [For Bonds, see Chapter 13.] But it is not essential that a note be given, for if the mortgage stands alone, both parties will be equally bound, provided that the deed sets forth the particulars of the agreement with sufficient clearness.

Sometimes, by some error, fraudulent or accidental, the agreement is not clear, the conveyance appearing to be an ordinary deed instead of a mortgage. In such case, in nearly every state it may be shown by oral evidence that only a mortgage was intended, and the mortgagor will be allowed to redeem his property.

Rule as to Oral Evidence.

The above is an exception to the strict general rule of law that oral evidence cannot be admitted to vary or change a written contract. The rule itself, however, should be always borne in mind by people who put any kind of contracts in writing, that the entire agreement must be written in order to be binding. If any portion be omitted from the paper, but be agreed to ever so solemnly by word of mouth, that portion is not legally binding on either party, although, had there been no writing at all, the oral agreement might have

been perfectly good. There are some apparent variations from the rule, as in the case of mortgages already given, but they are comparatively unimportant, while the rule itself is exceedingly important.

How to Foreclose a Mortgage.

The courts have always favored mortgagors, and lest they should be dealt hardly with by the mortga gees, further delay was, from early times, granted them after the arrival of the day on which the money became due.

Thus in Massachusetts, the statutory provision requires that, when the money becomes due, and the mortgagor fails to pay it, the mortgagee may enter into possession of the property; but three years more must pass before the latter's title will become complete, during which time the mortgagor may redeem his estate by paying the debt. This preliminary possession may be taken quietly by the mortgagee if the mortgagor will consent, and a certificate of such entry must be signed by the mortgagor or else by two witnesses, and properly recorded. If the mortgagor resists such entry by the mortgagee, the latter must apply to the courts for a judgment of possession, under which he may compel the mortgagor to vacate the premises in his favor, until such time as the debt, interest, and costs be paid up.

Power of Sale Mortgages.

The delay occasioned by this process, may be avoided, however, if the parties agree to insert a power of sale clause in the mortgage.

It is only recently that this kind of mortgage has been considered legally binding, but now it is very