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by creditors, and would go to assignees as a part of his property if he became insolvent. The time within which a mortgagor may thus redeem his land is usually three years.
The law regards this equity as so important that it will not permit a party to lose it by his own agreement. Thus, if a mortgagor agrees with the mortgagee, in the most positive terms, or in any way he can contrive, or for any consideration, that he will have no equity of redemption, and that the mortgagee may have possession and absolute title as soon as the debt is due and unpaid, the law sets aside all such agreements, and gives the debtor his equity of redemption for three years.
Within a few years, however, a way has been found to effect this purpose indirectly, which the law sanctions. Many persons object to lending their money on mortgage, because they will have to wait three years after the debt is due before the land can be certainly theirs. But it is now quite common for the mortgage deed to contain an agreement of the parties, that, if the money is not paid when it is due, the mortgagee may, in a certain number of days thereafter, sell the land (providing also such precautions to secure a fair price as may be agreed on), and, reserving enough to pay his debt and charges, pay over the balance to the mortgagor. This is called a power of sale mortgage.
The three years of redemption do not begin from the day when the debt is due and unpaid, unless the mortgagee then enters and takes possession for the purpose of foreclosing the mortgage, as the legal phrase is; by which phrase is meant extinguishing the equity of redemption. If the debt has been due a dozen years, the mortgagor may still redeem, unless the mortgagee has entered to foreclose, and three years have elapsed afterwards.
He may make entry for this purpose in a peaceable manner, before witnesses, as pointed out in the statutes regulating mortgages, or by an action at law.
If the mortgagor redeems, he must tender the debt, with interest, and the lawful costs and charges of the mortgagee; but he will be allowed such rents and profits as the mortgagee has actually received, or would have received but for his own fault.
It is commonly thought that the mortgagor has a right to retain possession until the debt is due and unpaid, and in fact he usually does so. But we have seen that the mortgagee has just as much right of immediate possession as a buyer; and therefore, if it is not intended that he should have possession at once, the mortgage deed ought to contain a clause to the effect that the mortgagor may retain possession as long as he pays instalments and interest as due, and complies with his other agreements.
One of these other agreements, which is now very common, is that the mortgagor shall keep the premises insured in a certain sum for the security of the mortgagee; and, if there be such an agreement, it should be expressed in the deed. Otherwise, if the mortgagee insures the house, he cannot charge the premium to the mortgagor.
If a mortgagor erects buildings on the mortgaged land, or puts fixtures there, and the mortgagee takes possession of the land, and forecloses the mortgage, he gets all these additions, If the mortgagee puts them on the land, and the mortgagor redeems, he gets the benefit of them all, without paying the mortgagee for them. Such is the effect of the law if there be no bargain between the parties about these things. But they may make any bargain about them they choose to make.
In the Forms appended to this chapter are many Forms of release and discharge of mortgages. In some states it is common to release a mortgage by a quitclaim deed from the holder of the mortgage to the holder of the land or of the equity or right of redemption. And not unfrequently it is done by an acknowledgment of satisfaction, release, or discharge drawn by the Register or Recorder of Deeds on the margin of the record of the mortgage, and duly signed by the mortgagee or holder of the mortgage.
Any instrument will have the effect of discharging and annulling a mortgage, which declares with sufficient definiteness that the debt, obligation, or covenant, which that mortgage was intended to secure, is paid, satisfied, or performed; the instrument being duly signed, sealed, and acknowledged, and placed on record. It takes effect like other deeds from the time it is placed in the Recorder's hands. Whenever a mortgage is discharged in any way, the Recorder makes an entry to that effect on the margin of the record of the mortgage.
The remarks which were made at the close of the preceding chapter (just before the Forms) concerning the various Forms of deeds conveying land, apply with equal force to deeds of morgage of land; and I refer to them now because they are equally necessary to the proper understanding and use of the following Forms.
promise lo pay to
dollars, at with interest at the rate of per cent. per annum. This note is secured by a deed of mortgage of even date herewith from to
(Signature.) (170.) Bond, to be Secured by a Mortgage. Know all Men by these Presents, That I (name of obligor) of in the County of
and State of am held, bound, and obliged unto (name of obligee) of in the County of
and State of
in the sum of (penalty usually twice as much as the actual debt) to be paid to the said (the obligee) his executors, administrators, heirs, or assigns, and to this payment I hereby bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal, this
in the year
The Condition of the above obligation is such, that if I the said (name of the obligor) or my heirs, executors, or administrators, shall pay or cause to be paid unto the said (name of the obligee) his heirs or assigns the sum of (here insert the amount of the debt or sum to be secured) on the
with interest at per cent., payable six months from the date hereof, and every six months afterwards, until the said sum is paid, then the above obligation shall be void and of no effect, and otherwise it shall remain in full force. And I further agree and covenant, that if any payment of interest be withheld, or delayed for days after such payment shall fall due, the said principal sum and all arrearage of interest thereon, shall be and become due immediately on
in the year
the expiration of
days, at the option of said (name of the obligee) or his executors, administrators, or assigns.
(Signature.). (Seal.) (Witness.)
(171.) Mortgage without Power of Sale and without Warranty,
but with Release of Homestead and of Dower. This Indenture, made this
in the year of our Lord one thousand nine hundred and between (name, residence, and occupation of mortgagor) and (name of wife) wife of said (name of mortgagor) parties of the first part, and (na me, residence, and occupation of mortgagee) party of the second part.
Whereas, The said party of the first part is justly indebted to the said party of the second part, in the sum of
secured to be paid by a certain promissory note (or bond) (describe the note or bond).
Now, Therefore, this Indenture Witnesseth, That the said parties of the first part, for the better securing the payment of the money aforesaid, with interest thereon, according to the tenor and effect of the said note (or bond) above mentioned, and also in consideration of the further sum of one dollar to us in hand paid by the said party of the second part, at the delivery of these presents, the receipt whereof is hereby acknowledged, have granteil, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns forever, all that (here describe the premises as directed in Form 107).
To Have and to Hold the same, Together with all and singular the tenements, hereditaments, privileges, and appurtenances thereunto belonging, or in anywise appertaining. And also all the estate, interest, and claim whatsoever in law as well as in equity, which the parties of the first part have in and to the premises hereby conveyed unto the said party of the second part, and his heirs and assigns, and to their only proper use, benefit, and behoof. And the said parties of the first part hereby expressly waive, release, relinquish, and convey unto the said party of the second part and his heirs, executors, administrators, and assigns, all right, title, claim, interest, and benefit whatever, in and to the above-described premises, and each and every part thereof, which is given by or results from all laws of this State pertaining to the exemption of homesteads.
Provided Always, and these Presents are upon this Express Con. dition, That if the said party of the first part, or his heirs, executors, of administrators, shall well and truly pay, or cause to be paid to the said part of the second part, or his heirs, executors, administrators, or assigns, the aforesaid sum of money, with such interest thereon, at the time and in the manner specified in the above-mentioned note (or bond) according to the true intent and meaning thereof, then, in that case, these presents and everything herein expressed shall be absolutely null and void.
In Witness Whereof, The said parties of the first part hereunto set their hands and seals, the day and year first above written, (Signature of mortgagor.)
(Seal.) (Signature of wife of mortgagor.) (Seal.) Signed, Sealed, and Delivered in Presence of
in and for the said county, in the State aforesaid, do hereby certify that (name of mortgagor) personally known to me as the same person whose name is subscribed to the foregoing mortgage, appeared before me this day in person and acknowledged that he signed, sealed, and delivered the said instrument of writing as his free and voluntary act, for the uses and purposes therein set forth.
And the said (name of wife) wife of the said (name of mortgagor) having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of said instrument of writing having been by me made known and fully explained to her, and she also by me being fully informed of her rights under the homestead laws of this State, acknowledged that she had freely and voluntarily executed the same, and re: linquished her dower to the lands and tenements herein mentioned, and also all her rights and advantages under and by virtue of all laws of this Stats relating to the exemption of homesteads, voluntarily and freely, and without the compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and official seal, this
day of A.D. 18
(172.) Mortgage, with Power of Sale, to secure a Bond, without
Release of Dower.
This Indenture, Made the
in the year one thousand nine hundred and
between (name, residence, and occupation of mortgagor) party of the first part, and (name, residence, and occupation of mortgagee) party of the second part: Whereas, the said (name of mortgagor) is justly indebted to the said party of the second part in the sum of of the United States, secured to be paid by a certain bond or obligation bearing even date with these presents, in the penal sum of dollars, lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of (here state the amount due on the bond, and the time and terms of payment) as by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear.
Now this Indenture Witnesseth, That the said party of the first part,