The language of the law. Part Latin, part Anglo-Saxon, all confusing.
In the December 1865 term of the District Court for Poweshiek County, Iowa, Job Cushman sued George W. Chambers and Eliza Jane Chambers, his wife.
The petition of the plaintiff Cushman sought the foreclosure of a mortgage against both of the defendants and judgment on a vendor’s lien against George W. Chambers arising out of the sale by Cushman to the Chamberses of the northeast quarter of Section 16, Township 81 North, Range 16 West in Poweshiek County.1
Now… most of us know what a mortgage is. Unless we happened to inherit real property … or a ton of money … from our parents or some earlier generation, most of us have or have had mortgages to buy our homes. We know, then, that by definition, 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.
Mortgage is a right granted to the creditor over the property of the debtor for the security of his debt, and gives him the power of having the property seized and sold in default of payment.2
Sigh… The language of the law. It’s that last one most of us know today, the granting of a right to a creditor to secure a debt. In most states, these days, title to the land stays with the buyer and the creditor only gets the right to come after the land if the mortgage or other debt isn’t paid.3
In the Cushman case, the mortgage debt was clearly a debt for the purchase of the land itself — sometimes called a purchase money mortgage.
But what’s this lien business? And particularly what’s a vendor’s lien?
The definition of a lien should sound very familiar:
A qualified right of property which a creditor has in or over specific property of his debtor, as security for the debt or charge or for performance of some act.
In every case in which property, either real or personal, is charged with the payment of a debt or duty, every such charge may be denominated a lien on the property.4
And a vendor’s lien was a very particular kind of lien: “A lien for purchase money remaining unpaid, allowed in equity to the vendor of land, when the statement of receipt of the price in the deed is not in accordance with the fact.”5
So, in other words, a mortgage is generally a type of lien — that secured interest in specific land for payment of a debt — and a vendor’s lien is an even more specific type of lien, for a balance owed in the Cushman v. Chambers case on a promissory note given in addition to the mortgage.
SOURCES
- Poweshiek County, Iowa, District Court Record Book B: 1, Cushman v. Chambers, December term 1865; ; digital images, “Iowa, Poweshiek County Probate, School, and Court Records, 1850-1954 > District Court complete record, 1854-1863, vol B,” FamilySearch (https://familysearch.org : accessed 17 May 2016). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 789-790, “mortgage.” ↩
- See generally Wex, Legal Information Institute, Cornell Law School (http://www.law.cornell.edu/wex : accessed 17 May 2016), “mortgage.” ↩
- Black, A Dictionary of Law, 719, “lien.” ↩
- Ibid., 1213, “vendor’s lien.” ↩
“The language of the law. Part Latin, part Anglo-Saxon” – and part French.
I don’t need to tell you the amount of French in the common law. But it might amuse you to know of an interesting wrinkle. Because Quebec is a hybrid jurisdiction, the common law there is a bit of an alien tongue. I have colleagues who have French as their first language but studied law in English. They practically have had to re-learn their native tongue to talk about the common law in French, because so many common law terms have no real French equivalent so that new terms had to be adapted or coined, or are words that are so obscure that most French speakers don’t know them.