Sec.6. A mortgage is a grant of land as security for the payment of money, on condition that, if the money shall be paid according to contract, the grant shall be void. When only a part of the purchase money is paid on receiving a deed, the purchaser usually executes a mortgage to the seller, pledging the land as security for the remainder of the purchase money. And if the money shall not be paid as agreed, the land may be sold; but if sold for more than the amount due, the overplus is to be paid to the mortgager.
Sec.7 To effect a full conveyance of real estate, a wife must join with her husband by signing the deed with him; or, in case of the husband’s death in her lifetime, she would be entitled, for life, to the use of one-third of the estate. This interest of a widow in the estate of a deceased husband, is called dower. It is necessary also for the wife to acknowledge, before the officer taking the acknowledgment, and apart from her husband, that she signed the deed freely, and without compulsion of her husband. In some states, the acknowledgment of the wife out of the presence of her husband is not required.
Incorporeal Hereditaments. Right of Way; Aquatic Rights, &c.
Sec.1. The term incorporeal hereditaments may, to some readers, need explanation. A hereditament is a thing capable of being inherited. Land, and all things attached to it by the course of nature or the hands of men, as trees, herbage, water, buildings, &c., which are comprehended in the term real estate, are corporeal hereditaments. Incorporeal hereditaments are inheritable rights which grow out of corporeal inheritances, or which consist in their enjoyment; as the right of pasturing a common; a right of passage over the land of another; a right to the use of waters, sometimes called aquatic rights, &c.
Sec.2. A right of way is a right of private passage over another man’s ground. This right is sometimes granted by the owner of the soil; and to make it a freehold right, it must be created by deed, though it be only an easement upon the land of another, and not an interest in the land itself. An easement is, in general, an accommodation. In law, it is any privilege or convenience which one has of another, by grant or otherwise, as a right of way, &c. By the grant of an easement, the grantee acquires no other right than what is necessary to the fair enjoyment of the privilege.
Sec.3. If it is a mere personal right, it can be enjoyed only by the owner of the right, and when he dies, the right dies with him. But a right of way belonging to an estate may be conveyed when the land is sold. Thus, if a man owns lot A and lot B, and he used a way from lot A, over lot B, to a mill, or to a river; and if he sells lot A with all ways and easements, the grantee will have the same privilege of passing over lot B as the grantor had.