Families, Fraud, and Foreclosure: Mortgage Law and Women’s Property in the Eighteenth Century

In eighteenth-century mortgage foreclosure cases expectant creditors were often faced with competing claims related to family settlements. This is not surprising since the expansion of long-term mortgage was tied to the development of the strict settlement, and associated methods for preserving and sharing out family wealth, from the mid-seventeenth century on. The recourse to mortgage was actively encouraged by eighteenth-century attorneys and solicitors who helped to increase the number and kinds of mortgages available, and to extend regional credit markets so that mortgage was used by middling as well as landed families, in rural as well as metropolitan areas.   Moreover, the robust development of protections for women’s property in Chancery ensured that questions about trusts, jointures, and dower were usual features of mortgage disputes.

Most scholars have ignored these kinds of persisting tensions, wrongly assuming that the structure of mortgage settlements, and factors determining foreclosure, had been resolved in Chancery by the end of the seventeenth century. In fact the scope and implementation of mortgage doctrine was left unresolved, and mortgage became a focus for debate about the wider problem of debt, and the worrisome potential for fraud, in this period of economic growth and volatility. This paper will present evidence of such debate from an eighteenth-century treatise literature, as well as from exemplary case law. And it will focus on evidence indicating that typical complaints regarding unfair advantage, fraud and deceit were frequently at the center of disputes not only between creditors and debtors, but also between wives and husbands, mothers and sons. A focus on some of these complaints and problems will not only provide a better understanding of the history of mortgage doctrine, but it will also open up important questions about the extent and security of English women’s property in this period.