A Welsh mortgage is a now-obsolete form of mortgage which could be created under English law.[1][2][3] Welsh mortgages were also used in other common law countries, including Ireland and Canada.[4] The main differences between a Welsh mortgage and a conventional mortgage were that:
under a Welsh mortgage the mortgagee (the lender) would receive all of the rents and profits which arise from the land during the period of the mortgage, whereas under a conventional mortgage the mortgagor (the landowner) would receive these; and
under a Welsh mortgage the mortgagee had no power to call for or sue for the principal sum; it was only the mortgagor who could elect to bring the mortgage to an end by repaying the principal. Conversely, in a conventional mortgage the mortgagee could call for repayment of the principal amount after the repayment date and sue for it or foreclose if it was not paid.[5]
The exact form fluctuated slightly. But Cooote on Mortgages described the concept as follows:[2]
A Welsh mortgage in its original and strict form closely resembled the mortuum vadium described by Glanville, being a conveyance of an estate, redeemable at any time on payment of the principal without interest: the rents and profits of the estate until such redemption being taken without account by the mortgagee in lieu of interest.
Welsh mortgages were not subject to foreclosure.[6][4] Technically there is no period for redemption. However if the mortgagor 'holds over' for a period of time which is sufficient to defeat a limitation claim, then the right to redeem is lost.[7]
Early twentieth century legal writers sought to draw a loose parallel between Welsh mortgages and the vivum vadium (or living pledge), an ancient form of mortgage in Medieval conveyancing, whilst also noting that the parallels were inexact.[8]
^Daniel Greenberg, ed. (2019). Jowitt's Dictionary of English Law. Vol. 2 (5th ed.). Sweet & Maxwell. p. 2662. ISBN 978-0-414-07345-6.
^ abR.L. Ramsbotham (1927). Coote on Mortgages (9th ed.). Sweet & Maxwell. p. 35.
^Cite error: The named reference MW was invoked but never defined (see the help page).
^ abEdwin Bell and Herbert Dunn (1899). Mortgages of Real Estate. Canada Law Book Company. p. 205.
^Wayne Clarke (2019). Fisher & Lightwood's Law of Mortgage (15th ed.). LexisNexis. para 1.8. ISBN 978-1-4743-1294-3.
^Sadler v Worley [1894] 2 Ch 170.
^R.L. Ramsbotham (1927). Coote on Mortgages (9th ed.). Sweet & Maxwell. p. 37.
^R.L. Ramsbotham (1927). Coote on Mortgages (9th ed.). Sweet & Maxwell. p. 2.
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