Lapas attēli
PDF
ePub

It used to be thought that a personal mortgage might be made to cover property subsequently acquired by the mortgagor. Thus, a dealer in dry goods would mortgage all his stock to secure some creditor, and provide in the mortgage that it should operate upon all his goods and merchandise subsequently acquired by him. But it has been held that such a clause has no effect; because no man can make a mortgage of property which he does not own at the time. We give annexed to this chapter the laws of all the States relating to mortgages of personal property.

THE PLEDGE OF PERSONAL PROPERTY,

A PLEDGEE is bound to take ordinary (not extreme) care of the thing pledged; and, if it be lost or injured for want of such care, he is answerable. He cannot use it, except at his own peril; that is, he is liable for any injury caused by using it, even if it was not his fault. If the thing-as a horse-needs use for its own safety, then the pledgee may use it for this pur pose, and is liable only for an injury caused by his negligence, He must account with the pledgor for the income, increase, or profits.

One difference between a mortgagee and a pledgee is this: A mortgagee need not take possession, for the mortgagor may retain it, and now this is provided for, as we have seen, by recording the mortgage. But if a thing is given in pledge, the pledgee must have and keep possession of it.

The most important difference is this. A mortgagee may sell and transfer his mortgage, and his transferee may transfer it again, and so on; and when the debt is paid, the mortgagor reclaims it from whomsoever has it then. But if a pledgee sells the pledge before the debt is due, it is held that he is at once answerable to the pledgor for its full value, although tha debt be not paid.

Some cases of this kind have been carried very far in New York. It is held there, and on grounds which may perhaps suffice to make it law everywhere, that if A lends money to B, and takes stocks in pledge, A cannot sell these stocks and keep the proceeds, and replace the stock and return it when

the debt is paid. He can do nothing but keep the stock; and if he sells it, the pledgor may recover at once its full value, and the pledgee will have no security for his debt. In such a case, a pledgee, being sued, offered the testimony of brokers and others to prove a uniform and established usage in the city of New York thus to sell or use pledged stock until the debt was paid; but the court said the usage was illegal, and refused to receive the evidence.

It is certain that after the debt is due and payable, and after demand if it be payable on demand, the pledgee may have a decree in chancery for a sale of the pledge, or may sell it himself: provided he first gives a reasonable notice to the pledgor, and then sells it, after a reasonable delay, in a proper manner, by a public sale at auction; and uses all reasonable precautions to get its value, as by advertisement, etc.; and does not buy it himself, directly or indirectly; and conducts himself in all respects honestly; and then he must account for the proceeds.

Sometimes the parties agree, when the pledge is given, or afterwards, how the pledge shall be treated, or how sold if not redeemed, etc.; and such agreements, if fair and reasonable, would undoubtedly be binding on both parties.

It is agreed that negotiable paper is excepted from the common rule; and the pledgee of that may sell or discount it before the debt is due; and must account for it, or its proceeds, if the debt is paid and the paper redeemed, or for the balance if he applies it to payment of the debt.

A loan of stock is not like a pledge of stock, because it authorizes the borrower to sell or pledge it, or use it in any way, at any time; but he must replace and return the same quantity of the same stock, when it is called for. If he could not thus make use of the stock, the loan of it would be of no benefit whatever to the borrower. But he cannot thus use stock pledged to him, unless by a special agreement which permits this use.

A pledgee, who receives a pledge to secure one or more specific debts, cannot retain it to secure other and further debts of the pledgor, unless with his consent. This consent may be express, or implied from words or circumstances whick sbow that such was the understanding of the parties.

(240.)

A Mortgage of Personal Property.

Know all Men by these Presents, That I (name of mortgagor) of the

town of

County of

and State of for and in consideration of dollars, to me in hand paid by (name of mortgagee) of the town of County of and State aforesaid, do sell and convey to the said (name of mortgagee) the following goods and chattels, to wit (list or schedule of the articles, specifying them with sufficient distinctness to make it certain what they are) warranted free of incumbrance, and against any adverse claims: Upon condition, that if the said (name of the mortgagor) pay to the said (name of the mortgagee) dollars and interest, in year, agreeably to a promissory note of this date, for that sum, payable to the said (name of mortgagee) or order, on demand, with interest, this deed shall be void, otherwise in full force and effect.

The aforesaid Parties Agree, That, until the condition of this instrument is broken, the said property may remain in possession of the said (name of mortgagor), but after condition broken the said (name of mortgagee) may at his pleasure take and remove the same, and may enter into any building or premises of the said (name of the mortgagor) for that purpose.

Witness our hands and seals this

day of

A.D.

(Signature of mortgagor.) (Seal.) (Signature of mortgagee.) (Seal.)

Sealed and Delivered in the Presence of

STATE OF

COUNTY OF

Be it Remembered, That on this nineteen hundred and

day of

before me, the undersigned, Notary Pub

fic in and for said County and State, duly commissioned and qualified, came who is known to me to be the same person whose name is subscribed to the foregoing instrument of writing, as party thereto, and he acknowledged the same to be his act and deed, for the purpose therein mentioned.

In Testimony Whereof, I have hereunto set my hand and affixed my official seal, at office, in the city of the day and year last afore

said.

(241.)

Notary Public.

A Mortgage of Personal Property, with Warranty.

Know all Men by these Presents, That I, (name and residence of mortgagor) in consideration of the sum of to me in hand paid by name and residence of mortgagee) the receipt whereof is hereby acknowł

edged, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said (name of mortgagee) the following articles of personal property; that is to say (list or schedule as in Form 240).

To Have and to Hold all and singular, the said goods and chattels, unto the said (name of the mortgagee) and his executors, administrators, and assigns, to his and their use forever. And I the said mortgagor, for myself and for my executors and administrators, do covenant to and with the said mortgagee, and with his executors, administrators, and assigns, that I am lawfully possessed of the said goods and chattels, as of my own property; that the same are free from all incumbrances, and that I will, and my execu tors and administrators shall, warrant and defend the same to the said mortgagee, his executors, administrators, and assigns, against the lawful claims and demands of all persons.

dollars, in

Provided Nevertheless, That if the said mortgagor, his executors or administrators, shall well and truly pay unto the said mortgagee, his execu tors, administrators, or assigns, the sum of months from the date hereof (or on a certain day, stating the day when the money is to be paid) with interest at per cent., then this deed as also a certain promissory note bearing even date herewith, signed by the said mortgagor, whereby he promises to pay the said mortgagee t' said sum and interest at the time aforesaid, shall both be void; otherwise shal remain in full force and virtue.

And Provided Also, That until default by the said mortgagor, or his executors and administrators, in the performance of the condition aforesaid, or of some part thereof, it shall and may be lawful for him or them to keep possession of the said granted property, and to use and enjoy the same; but in case of such default, or if the same or any part thereof shall be attached, at any time before payment as aforesaid, by any other creditor or creditors of the said mortgagor, or if the said mortgagor, or his executors or administrators, shall attempt to sell the same, or any part thereof, without notice to the said mortgagee, or his executors, administrators, or assigns, and without his cr their assent to such sale in writing expressed, or shall remove the same, or any part thereof, from the place in which they now are, without such notice and assent, then it shall be lawful for the said mortgagee, or his executors, administrators, or assigns, to take immediate possession of the whole of said granted property, to his and their own use.

In Testimony Whereof, I have hereunto set my hand and seal this day of in the year of our Lord one thousand nine hundred and

Executed and Delivered in the Presence of

(Signature.) (Seal.)

(242.)

A Mortgage of Personal Property, with a Power of Sale. Know all Men by these Presents, That I, (name of mortgagor) of the town (or city) of in the County of and State of dollars, to me paid by (name

in the County of

in consideration of of mortgagee) of the town (or city) of and State of the receipt whereof is hereby acknowledged, do hereby grant, bargain, and sell unto the said (name of mortgagee) and his assigns, forever, the following goods and chattels, to wit (list or schedule, a in Form 240).

To Have and to Hold, All and singular the said goods and chattels unto the mortgagee herein, and his assigns, to their sole use and behoof forever. And the mortgagor herein, for himself and for his heirs, executors, and administrators, does hereby covenant to and with the said mortgagee and his assigns, that said mortgagor is lawfully possessed of the said goods and chattels, as of his own property; that the same are free from all incumbrances, and that he will warrant and defend the same to him the said mortgagee and his assigns, against the lawful claims and demands of all persons.

Provided, Nevertheless, that if the said mortgagor shall pay to the mort. gagee, on the in the year sum of

day of

the

dollars, then this mortgage is to be void, otherwise to

remain in full force and effect.

And Provided Further, That until default be made by the said mort. gagor in the performance of the condition aforesaid, it shall and may be lawful for him to retain the possession of the said goods and chattels, and to use and enjoy the same; but if the same or any part thereof shall be attached or claimed by any other person or persons at any time before payment, or the said mortgagor, or any person or persons whatever, upon any pretence, shall attempt to carry off, conceal, make way with, sell, or in any manner dispose of the same or any part thereof, without the authority and permission of the said mortgagee or his executors, administrators, or assigns, in writing expressed, then it shall and may be lawful for the said mortgagee, with or with out assistance, or his agent or attorney, or his executors, administrators, or assigns, to take possession of said goods and chattels, by entering upon any premises wherever the same may be, whether in this county or State, or else. where, to and for the use of said mortgagee or his assigns. And if the moneys hereby secured, or the matters to be done or performed, as above specified, are not duly paid, done or performed at the time and according to the condi tions above set forth, then the said mortgagee, or his attorney or agent, or his executors. administrators, or assigns, may by virtue hereof, and without any suit or process, immediately enter and take possession of said goods and chattels, and sell and dispose of the same at public or private sale, and after satisfying the amount due, and all expenses, the surplus, if any remain, shall be paid over to said mortgagor or his assigns. The exhibition of this mort

« iepriekšējāTurpināt »