Mortgage derives from Old French mort gage, meaning “dead pledge,” from mort (dead) and gage (pledge), also historically referred to as mortuum vadium.
This term reflects the historical origins of mortgage instruments in European feudal systems, where land was pledged conditionally rather than owned outright.
A Deed of Trust or Mortgage functions as a security instrument, not a grant of full ownership. It establishes a conditional interest in land, subject to performance of obligations, and introduces third-party control mechanisms (such as trustees) that historically resemble feoffment-style conveyances used in feudal land tenure systems.
Title, Interest, and “Color of Title”
In modern practice, the execution of a Deed of Trust does not necessarily equate to unencumbered ownership of land. Rather, it often results in the holder receiving color of title or a qualified interest, while superior claims, conditions, and powers of enforcement remain embedded in the instrument.
Language such as “conveyed in fee simple” reflects a legal estate recognized within statutory frameworks, but this concept has historical roots in feudal tenure and should not be confused with absolute or allodial ownership ((i.e., allodial title) free from conditions, liens, or superior claims.
Why This Matters
Understanding the historical and legal structure of mortgage (dead pledge) instruments is essential when examining:
- due process concerns,
- the nature of title,
- the 'holder-in-due-course' of the original promissory note and deed of trust,
- the specie of money (gold and silver coins) that was alleged to have been lent,
- the scope of alleged creditor powers, and
- the enforceability of security interests.
These issues are particularly relevant when disputing mortgages, deeds of trust, and promissory notes in both administrative and judicial forums.
See the power point presentation below on "Modern Feudalism - The Role of Mortgages and Rental Contracts in Creating a System of Vassalage.
