Ann M. Burkhart


Using land to secure loans has been a particularly durable human institution. Mortgages' have existed since antiquity,2 primarily because land generally retains its value and is permanent and immovable. In societies with largely nonmonetary economies, such as feudal England, land also has been particularly valued as a source of livelihood and of power. Therefore, land has been and continues to be desirable security for loans. To retain its utility throughout the centuries, the mortgage necessarily has evolved to reflect changing legal and economic conditions. As is to be expected, the modem American mortgage creates some very different rights and liabilities than the forms of security used during the earliest common law, when physical battle was a legally prescribed means of determining the existence of a debt and mortgage.3 In one very important respect, however, the modem mortgagee is becoming increasingly more like its feudal counterpart. Substantial economic and legal incentives now exist, as they did during the early common law period, for a mortgagee to be concerned with and knowledgeable about the condition and use of the mortgaged land. In fact, the mortgagee's relationship to the mortgaged land now has entered its third era. The first era began with the earliest forms of common law mortgages in the twelfth century and ran until the late sixteenth and early

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