MORTGAGES-GIVEN WITHOUT CONSIDERATION BUT INTENDED AS GIFT

Authors

Abstract

Statements that no mortgage is good unless there is consideration therefor are common; but that such statements are entirely true is very doubtful. Jones, in his book, Mortgages, makes such a statement, and then in the same section tells us that a mortgage intended as a gift will be enforced against all but prior creditors of the mortgagor. Wiltsie, in his book, Mortgage Foreclosures, states that want of consideration is a good defense, with some exceptions which are not clearly indicated. And Tiffany, in his work on Real Property, suggests that although a mortgage without consideration might be valid as a conveyance of something, it would be unenforcible in fact because of the equitable rule that a mortgage may be enforced only for so much as is actually due on it. In considering the subject it is important to determine whether in fact a mortgage was intended as a gift and intended to be valid though without consideration, and to differentiate such a transaction from other types of cases which have, in large part, given rise to the rule so generally announced, that consideration is necessary for a valid mortgage.

Recommended Citation

MORTGAGES-GIVEN WITHOUT CONSIDERATION BUT INTENDED AS GIFT, 31 Mich. L. Rev. 102 (1932).
Available at: https://repository.law.umich.edu/mlr/vol31/iss1/11