12.28.4

Requisites For A Valid Mortgage

It is a well-established doctrine that an instrument must be deemed and held a mortgage, whatever may be its form, if taken alone or in connection with the surrounding facts and attendant circumstances it appears to have been given for the purpose or with the intention of securing the payment of money. The mere absence of terms of defeasance cannot be used to determine whether or not the instrument is a mortgage.

Although no particular format is necessary to create a valid mortgage, state law generally requires a mortgage to include the formalities required of a deed. The minimum requirements to create a valid mortgage can be summarized as follows:

  • The capacity of the mortgagor and mortgagee to hold and deal with interests in land.
  • An appropriate indication of the intent to encumber the property.
  • Adequate identification of the property covered by the mortgage.
  • Description of the obligation secured by the mortgage.
  • The specific land interest utilized as security.
  • Valid consideration.
  • Statutory formalities in connection with the execution of such an instrument:

    • Signature
    • Acknowledgment
    • Delivery
    • Recording

  • Other requirements may be the following:

    • Waiver of homestead and dower
    • Seal
    • Witnesses
    • Other jurisdictional requirements (mortgage tax, etc.)
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