(Jflrtttll IGatw ^rlyonl Stbrarg KF N5175 C f45" Un ' VerStt * L ">rary A , WaJBJ»» law I Cornell University y Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022802775 A TREATISE LA¥ OF MOETGAGES EEAL AND PERSONAL PROPERTY m THE STATE OF NEW YOKE. AN APPENDIX OF FORMS. ^t»t AHJMJSB U r THOMAS, Counselor at Law. NEW YORK: BAKEE, VOOEHIS & CO., PUBLISHEES, 66 NASSAU STREET. 1877. Entered according to Act of Congress, in the year eighteen hundred and seventy-seven, by ABNER C. THOMAS, In the office of the Librarian of Congress, at Washington. KFN 57*75* T>£T BAKER & GODWIN, Printers, 25 Park Row, N. Y. PREFACE. The fact that mortgages of land are, in the State of New York, almost as common as absolute conveyances, is evidence of the most convincing character that the law which governs the rights and remedies of the parties to them, has been wisely framed and is justly administered. The conclusion which may be reached from so casual an observation of results will be abundantly justified by a study of the law itself ; and it is beyond dispute that the law of mortgages of real property in this State is admirably adapted to the business needs of our people. , Mortgages of chattels do not afford such- satisfactory se- curity to the mortgagees as do mortgages of real estate, but, as an offset to this, they are regarded with favor by failing debtors who desire to shield their property from the demands of their creditors. They are not so common as mortgages of real estate, but the questions which arise concerning the rights of parties claiming under them, and of those claiming in hostility to them, are numerous and important. The aim of the author in preparing this work has been to present in a convenient form an intelligible statement of the law governing the rights and remedies of parties to mortgages in this State, and to collate- and arrange under appropriate divisions all of the decisions of the courts of this State relative to the topics treated. Decisions of the English courts, and of the courts of the other States of our Union, and of the United iv PREFACE. States, have also been cited for -the purpose of illustrating principles which have received approval here. The Appendix of Forms was designed to furnish the kind of help which a busy lawyer, unfamiliar with- the practice in liti- gations which specially concern mortgages, could not get from a mere statement of principles. It was, therefore, attempted to avoid inserting forms which were, on the one hand, so common' as to be kept for sale by the stationers, or on the other, so unusual as to be but seldom needed. In thus taking his readers into his confidence as to what he has tried to accomplish, the author expressly disclaims any pre- tension to having entirely succeeded in his endeavors. He sincerely wishes that the book were more complete and satis- factory, and he sends it out into the world in the hope that, in spite of its defects, it may serve to lighten, somewhat, the labors of an overworked profession. Abneb C. Thomas. Tribune Building, New York, January 3d, 1877. TABLE OF CONTENTS. CHAPTEE I. HISTORY OF MORTGAGES AND THEIR NATURE. PAGE. Origin of mortgages — Mortgages under the civil law — Mortgages among the Anglo-Saxons and the Normans — Mortgages at common law — The equity of redemption — Rights of mort- gagor and mortgagee at law and in equity — What is essential to constitute a mortgage — Form of the agreement for re- demption, and how it may be proven — Nature of the estate of the mortgagor — Nature of the estate of the mortgagee. 1-18 CHAPTEE II. DIFFERENCE BETWEEN CONDITIONAL SALES AND MORTGAGES 19-25 CHAPTEE III. EQUITABLE MORTGAGES. Definition of an equitable mortgage — Equitable mortgages by deposit of title deeds— When an agreement for a lien upcn land is enforced in equity as a lien — The lien ef a vendor for unpaid purchase money — When a vendor's lien may be en- forced by a third person — What amounts to a waiver of a vendor's lien — Lien of a vendee for money paid on contract of purchase — Priority of equitable mortgages as against subse- quent purchasers and incumbrancers — Remedies proper for an equitable mortgagee 24-34 CHAPTEE IV. WHO MAT MORTGAGE AND HOW. A mortgage must be a valid transfer of some interest or estate — Mortgages executed under powers — Mortgages of the lands of infants — -Mortgages of the lands of lunatics and habitual drunkards— Mortgages of the lands of religious corporations — Mortgages of lands of deceased persons to pay debts 35-43 VI TABLE OF CONTENTS. CHAPTEE V. EXTENT OP THE LIEN, AND REMEDIES ON ACCOUNT OP WASTE. PAGE. Lien of a mortgage on a .right of action for damages to the estate — Mortgages on leasehold estates — Lien upon fixtures — Does the rolling stock of a railroad pass under a mortgage of the roadway ? — Lien upon emblements — Injunction to re- strain waste — Remedy of mortgagee against persons who have committed waste 44-56 CHAPTER VI. MORTGAGES FOR FUTURE ADVANCES. Form in which mortgages for future advances may be made — Effect of agreement for further advances made subsequent to the execution of a mortgage — Priority of mortgages for future advances as against liens which attach before the advances are made — Recording of mortgages for future ad- vances 57-63 CHAPTER VII. TIME FOR THE PAYMENT OF THE MORTGAGE DEBT. Extension of time of payment — Extension of time by the renewal of notes secured by a mortgage — When an extension of time will discharge a surety — When a refusal by a creditor to collect a debt discharges the surety — Is a mortgagor who has conveyed the property, released by an extension of time to his grantee ? — Shortening the time of payment under the " interest clause " 64 78 CHAPTER VIII. RIGHTS OF MORTGAGEE IN POSSESSION, AND ACCOUNTING BETWEEN MORTGAGOR AND MORTGAGEE. The right of a mortgagee who is lawfully in possession, to retain possession — Duty of a mortgagee in possession relative to the management of the estate— Right of a mortgagee in possession to make repairs at the expense of the mortgagor — Right of a mortgagee in possession to acquire an adverse title— Money paid for taxes, assessments and other charges on the estate — Insurance premiums — Interest and partial payments 79 _ 8 8 TABLE OF CONTENTS. Vll CHAPTEE IX. THE PRIMARY FUND FOR THE PAYMENT OF MORTGAGES AND PRIORITIES INDEPENDENT OF THE RECORDING ACTS. PAGE. Primary fund as between heirs or devisees and personal represent- atives — Which is the prior fund as between two or more parcels of land mortgaged for the same debt — The owner of the estate which stands as surety will, upon payment by him, be subrogated to the rights of the mortgagee — Where equities will be protected by controlling the remedy of the mortgagee — Priority of mortgages as controlled by agreements of parties — Priority of purchase money mort- gages — Priority of mortgages over judgments — The doctrine of tacking : 89-100 CHAPTEE X. ASSIGNMENT OF MORTGAGES. In what way an assignment of a mortgage can be made — An assignee of a mortgage takes it subject to the equities of the debtor — Distinction between latent equities and equities of the obligor — An assignee of a mortgage takes it subject to the equities of third persons who had acquired rights in the mortgaged premises previous to the assignment — When the assignee of a mortgage takes it subject to the equities of third persons claiming rights in the mortgage — Rules for determining what equities are destroyed by an assignment to a bona fide purchaser — When the mortgagor will be estopped from setting up a defense as against an assignee of the mortgage — What covenants are implied in an assignment of a mortgage — Notice of the assignment of a mortgage should be given to the mortgagor 101-119 CHAPTEE XI. THE SATISFACTION AND DISCHARGE OF MORTGAGES. Who may receive payment of the mortgage debt and acknowl- edge satisfaction — Power of a foreign executor or adminis- trator to receive payment — An assignee of a mortgage, who holds it merely as security, may receive payment — Possession of the bond is in some cases evidence of an authority to collect — In what cases the lien of a mortgage may be discharged by a tender of payment — When a mort- gage may be discharged under the doctrine of merger — When the taking of a higher security will extinguish an inferior one — When a release of a portion of the security will cancel the mortgage pro tanto — Discharge by extending time for payment of mortgage debt— Discharge by estoppel — When a mortgage is discharged by lapse of time — Dis- charge of mortgages upon the record — Special proceedings to discharge mortgages of record in certain cases . : 120-145 Vlll TABLE OF CONTENTS. CHAPTEE XII. THE RECORDING ACTS. PAGE. What instruments may be recorded — Acknowledgment or proof to entitle a paper to be recorded— What the record of a deed is notice of— The effect of the record is limited to giving notice— What actual notice of a deed is equivalent to the recording qf it — The recording acts only protect lona fide purchasers who record their deeds — Conveyances and mort- gages must be recorded in different sets of books — Who will be bound by the notice contained in the record — Recording ^ assignments of mortgages 146-T61 V CHAPTEE XIII. MORTGAGES TO THE COMMISSIONERS OF THE UNITED \ STATES DEPOSIT FUND. Origin of the fund — Effect of these mortgages as record notice — Provisions of law specially applicable to mortgages to the loan commissioners — Rights of mortgagors under mortgages to the loan commissioners — Sale of the mortgaged premises under the statute 163-173 CHAPTEE XIY. INSURANCE AGAINST FIRE. Insurable interests of parties to mortgages — Form of the contract of insurance — Rights of the parties where the premium is paid by the mortgagor — Rights of the parties where the premium is paid by the mortgagee — When the insurer is en- titled to be subrogated to the rights of the mortgagee 174-184 CHAPTEE XY. THE ASSUMING OF MORTGAGES. Nature of the agreement to assume — Grounds upon which the mortgagee may enforce the agreement to assume — Effect of the agreement where the grantor is not obligated to pay the debt — Defences to actions on covenants to assume mortgages 185-195 CHAPTEE XVI. MARRIED WOMEN. Power of married women to mortgage their lands— Liability of married women for deficiency upon foreclosure — Right of dower in the equity of redemption 196-205 TABLE OF COJSTTENT8. IX CHAPTER XYII. USURY. PAGE. What contracts are usurious — Effect of usurious contracts upon prior obligations — Who may avail themselves of the defence of usury — Who are bound by contracts even though they be usurious — Usury as a defence for the guarantor of the mort- gage debt — The usurer cannot avail himself of the statute — Defence of usury by corporations — Affirmative relief in equity against usurious mortgages 306-218 -CHAPTER XVIII. REDEMPTION. Nature of the right to redeem — Who is entitled to redeem — Who is entitled to an assignment of the mortgage on redeeming — How the mortgagee may be compelled to execute an assign- ment — Redemption after a defective foreclosure —When an action to redeem is barred by the statute of limitations. . . . 219-229 CHAPTER XIX. ACTIONS TO REDEEM. When an action to redeem is a proper, and when it is the only remedy of the mortgagor — Parties to actions to redeem — ■ Complaint in actions to redeem — Judgment in actions to redeem — Effect of failure to redeem within the time limited by the judgment 230-238 CHAPTER XX. PARTIES TO ACTIONS FOR THE FORECLOSURE OF MORT- GAGES. Who are proper plaintiffs in foreclosure cases — Who are necessary defendants in foreclosure cases — Who are proper defendants in foreclosure cases — When the assignor of a mortgage is a necessary or proper party to an action to foreclose it 239-252 CHAPTER XXL NOTICE OF THE PENDENCY OF THE ACTION TO FORECLOSE. Statutory provisions relative to filing notice of the pendency of the action — Form and contents of the notice, and the filing thereof — Who are bound by the notice of the pendency of the action — Indexing the notice — Consequences of omission to file notice of the pendency of the action 253-262 X TABLE OF CONTENTS. CHAPTER XXII. PRACTICE IN ACTIONS TO FORECLOSE MORTGAGES. PAGE. Nature of the action — "What courts have jurisdiction/— Service of summons — Appearance of defendants — Joinder of actions to foreclose two or more mortgages — Consolidation of actions to foreclose— Complaint— Notice of no personal claim — Change of parties — Practice on failure to answer — Opening default — Form and contents of the judgment of foreclosure and sale — Judgment for deficiency — Force and effect of the judgment 263-286 CHAPTER XXIII. DEFENCES IN ACTIONS TO FORECLOSE. What may be litigated in actions to foreclose — How a defect of parties may be objected to — Proceedings at law for the same debt — Infancy as a defence — Failure of consideration for a purchase money mortgage — "What counter-claims are permis- sible in foreclosure cases — "When a grantee may defend who has taken subject to the mortgage .. 287-300 CHAPTER XXIV. RECEIVERS OF RENTS. When a receiver will be appointed — Powers and duties of the receiver ... 301-307 CHAPTER XXV. COSTS. "When costs will be granted in actions to foreclose — Costs in actions to redeem — Tender after action brought and before judgment — Allowances in addition to costs 308-315 CHAPTER XXVI. HOW THE SALE UNDER THE JUDGMENT OF FORECLOSURE SHOULD BE MADE. By what officer the sale may be made— Publication and posting of the notice- of gale— Duties of the officer making the sale — Terms of the sale— Adjourning the sale— Fees of the offi- cer making the sale 316-327 TABLE OF CONTENTS. Xl OHAPTEE XXVII. WHEN THE SALE SHOULD BE MADE IN SEPARATE PARCELS, AND ORDER OP THE SALE OF SUCH PARCELS. PAGE. Practice prior to the revised statutes, only a portion of the mort- gage debt being due — Provisions of the revised statutes, only a portion of the mortgage debt being due — How much of the mortgaged premises should be sold — When the sale should be made in separate parcels — In what order separate parcels should be sold 328—340 CHAPTEE XXVIII. SETTING ASIDE THE SALE IN FORECLOSURE, AND ORDERING A RESALE. How the sale may be set aside — Rule where the plaintiff becomes the purchaser — Inadequacy of price as a ground for grant- ing a resale — Irregularity in conducting the sale as a ground for a resale — Fraud as a ground for a resale — Excusable mistake as a ground for a resale — When a resale will be or- dered for the benefit of infants — When a resale will be denied — Terms imposed in ordering a resale — When an order granting or denying a resale is appealable 341-353 CHAPTER XXIX. RIGHTS AND OBLIGATIONS OF THE PURCHASER AT THE SALE UNDER THE JUDGMENT OF FORECLOSURE. Who may purchase — Contract of the purchaser, and enforcing its performance — What kind of a title the purchaser must take — When a purchaser will be' excused from completing his purchase — Allowance of costs to the purchaser when the sale is set aside 354-363 CHAPTEE XXX. ESTATE OF THE PURCHASER AT THE SALE UNDER THE JUDGMENT, AND HOW POSSESSION MAY BE OBTAINED. Nature of the title acquired by the purchaser — When the rights of the purchaser vest — Act of 1837, allowing redemption after the sale — Questions which are not disposed of by the judgment and sale — Nature of the writ of assistance, and when it will be granted — Extent of the force or effect of a writ of assistance — Summary proceedings by purchaser to obtain possession 364-375 Xll TABLE OF CONTENTS. CHAPTER XXXI. SURPLUS PROCEEDINGS. PAGE. Provisions of law relating to the distribution of surplus — Nature of the proceedings to distribute surplus, and what may be litigated therein — Who is entitled to the surplus — Are sur- plus moneys to be treated as real or personal property — Rights of the wife of the owner of the equity of redemption in the surplus — Costs in surplus proceedings 376-388 CHAPTER XXXII. REMEDIES OF THE MORTGAGEE, OTHER THAN BY PROCUR- ING A SALE OP THE MORTGAGED ESTATE. Strict foreclosure — Mortgaged property cannot be sold under an execution for the mortgage debt — Effect of the commence- ment of a foreclosure on the right of the mortgagee to proceed at law — Effect of obtaining judgment at law on the right of the mortgagee to foreclose — Ejectment 389-398 CHAPTER XXXIII. FORECLOSURE BY ADVERTISEMENT. General policy of the statutes regulating sales by mortgagees under powers — "What mortgages may be foreclosed by adver- tisement — Who may foreclose — Publishing, posting, and serving the notices of foreclosure by sale — What the notioe of foreclosure by sale must contain — Postponing the sale Manner of conducting the sale — Restraining the sale by Injunction— When the sale will be set aside — What title the purchaser acquires— Evidence of the foreclosure — Costs of foreclosure — Distribution of surplus— How a purchaser may obtain possession 399-426 CHAPTER XXXIV. MORTGAGES OF PERSONAL PROPERTY, AND HOW THEY DIFFER FROM PLEDGES AND CONDITIONAL SALES. What constitutes a chattel mortgage — Difference between a chattel mortgage and a pledge— Difference between the rights of parties under chattel mortgages and under pledges — Conditional sales of chattels 427-441 TABLE OF CONTENTS. Xlll CHAPTEE XXXV. RIGHTS OF THE PARTIES TO A MORTGAGE OF PERSONAL PROPERTY AS AGAINST EACH OTHER. PAGE. Rights of the parties to a chattel mortgage — Rights of the mort- gagee at law, after default— Rights of the mortgagor in equity, after default— Liabilities and duties of the mort- gagee on taking possession — Foreclosure of chattel mort- gages — Who may purchase at the foreclosure sale — Enforcing the personal liability of the mortgagor for deficiency after foreclosure 442-456 CHAPTEE XXXVI. ASSIGNMENTS OF CHATTEL MORTGAGES AND TRANSFERS OF THE MORTGAGED PROPERTY. Assignments of chattel mortgages' — Remedies against a mort- gagor for assuming to sell the property free from the mortgage lien — When the mortgage will be discharged by the act of the mortgagee in assenting to a sale — Rights of successive mortgagees of the same property as against each other — Priority of chattel mortgages, independent of re- cording acts — Priority of chattel mortgages as against liens for valuable services rendered to the property 457-465 CHAPTEE XXXVII. VALIDITY OF CHATTEL MORTGAGES AS BETWEEN THE PARTIES TO THEM. What debts may be secured by chattel mortgages — What law controls as to validity — What description of the mortgaged property is sufficient — What interests in chattels are capable of being mortgaged— When a mortgage will cover property not described in it — Acceptance by the mortgagee 466-474 , ' CHAPTEE XXXVIII. VALIDITY OF CHATTEL MORTGAGES AS AGAINST CREDITORS AND PURCHASERS, INDEPENDENT OF THE STATUTE REQUIRING THEM TO BE FILED. The continued possession of the mortgagor a badge of fraud — What constitutes an actual and continued change of posses- sion — Overstating the claims of the mortgagee a badge of fraud — When an agreement that the mortgagor may sell the property renders the mortgage void — When a mortgage may be void only in part — Who may dispute the validity of a chattel mortgage — How the question of the validity of a chattel mortgage may be contested 475-493 XIV TABLE OF CONTENTS. CHAPTEE XXXIX. FILING OF CHATTEL MORTGAGES. PAGE. When, where, and how chattel mortgages should be filed— Refil- ing of chattel mortgages— Statement of mortgagee's interest on refiling — "When filing is unnecessary — Who may take advantage of omission to file a chattel mortgage 494-507 CHAPTEE XL. TAKING MORTGAGED CHATTELS UPON EXECUTION. When the interest of the mortgagor may be seized upon execu- tion — When the interest of the mortgagor cannot be seized upon execution — Mortgages of property exempt from levy and sale — When the execution becomes a lien — Conse- quences of a sale by the sheriff which ignores the mortgage — In what lots or parcels the property should be sold — Remedy of the mortgagee where a sale is made in an im- proper manner 508-5 16 CHAPTEE XLI. MORTGAGES ON SHIPS AND VESSELS. Filing and recording mortgages on ships and vessels — Proving a mortgage on a vessel in judicial proceedings — Liability of mortgagees of ships for supplies and repairs — Liens for sup- plies and repairs — Bottomry and respondentia bonds 517-526 APPENDIX OF FORMS ' 529-585 INDEX TO FORMS ; 537 GENERAL INDEX INDEX TO CASES CITED.. Abbott v. Allen, 293, 394, 297. Abernethy v. Society of the Church of the Puritans, 41. Ackley v. Finch, 428, 445. Adams v. Davidson, 478. Mtna, Ins. Co. v. A.ldricb, 468. v. Tyler, 32, 183. Agate v. King, 296. Ainsley v. Mead, 202. Ainslie v. Wilson, 134. Albany City B'k v. Schermerhorn,306. Albany Fire Ins. Co. v. Bay, 196,197. Aldrich v. Mtna, Ins. Co., 519. v. Lapham, 270. v. Reynolds, 51, 413. Algur v. Gardner, 207. Allen v. Brown, 45. v. Franklin Ins. Co., 174. V. Jaquish, 64. Allerton v. Belden, 216, 218, 235. v. Lang, 101. Althanse v. Radde, 358. American Ins. Co. v. Oakley, 96, 266, 334, 341, 342, 345, 351, 358, 362. Anderson v. Austin, 406, 411. v. Hunn, 481, 490, 491, 492. v. Neff, 100. Andrew v. Dietrich, 436, 439. Andrews v. Gillespie, 250, 252, 289. v. Monilaws, 202. v. Shaffer, 197. Angel v. Boner, 130. Archer v. Hubbell, 503. Arnold v. Patrick, 33, 34. v. Rees, 264. Arnot v. McClure, 419, 420. v. Post, 125. Artcher v. Douglass, 296. Astor v. Hoyt, 15, 16, 44, 45. v. Miller, 15, 45. v. Romayne, 324. v. Turner, 301, 304, 369. Atlantic Dock Co. v. Leavitt, 186. Atlantic Ins. Co. v. Storrow, 183. Atlantic Savings Bank v. Hetterick, 381. v. Hiler, 381. Austin v. Hall, 120. Averill v. Guthrie, 100. v. Loucks, 383. v. Taylor, 122, 221, 223, 223, 233, 240, 243, 403. Aymar v. Bill, 16, 102. Babcock v. Bridge, 63. v. Morse, 65. v. Utter, 46. Bache v. Purcell, 268, 311. Badger v. Phinney, 292. Bailey v. Burton, 508. Baker v. Lorillard, 39. v. Thrasher, 22. Baldwin v. Norton, 141. Ballard v. Burgett, 439. Ballin v. Dillaye, 199. Ballou v. Cuningham, 446, 450, 452 , 455. Baltes v. Ripp, 446, 508. Bangs v. Strong, 68, 73. Bank of Albion v. Burns, 69,1 39,198, Bank of Auburn v. Roberts, 44. Bank of Lansingburg v. Crary, 47, 472. Bank of Montgomery County's Ap- peal, 61. Bank of Ogdensburgh v. Arnold, 301, 302, 330. Bank of Plattsburgh v. Piatt, 304. Bank of Rochester v. Emerson, 285. v. Jones, 428. Bank of Rome v. Mott, 55. Bank of Utica v. Finch, 57, 58, 63, 65, 100, 304. Banks v.Walker,246,288,293, 294,368. Banta v. Maxwell, 346. Barber v. Carey, 412. Bard v. Poole, 250, 251. v. Steele, 278, 339. XVI INDEX TO CASES CITED. Bardwell v. Roberts, 428. Baring v. Moore, 321. Barker v. Bucklin, 185. v. Union Mutual Ins. Co., 114. Barnard v. Bruce, 286, 310. v. Baton, 470. Barnes v. Camack, 143. v. Stoughton, 344. Barnett v. Pritchard, 436. Barnum v. Hempstead, 38. Barrett v. Carter, 12. v. Pritchard, 441. Barrow v. Paxton, 429, 430, 477, 495. Barry v. Ransom, 296. v. Merchants' Exchange Co., 57. Bartlettv. McNeil, 395. Barton v. May, 235, 238, 312. Bartow v. Cleveland, 226, 308, 312, 313. Bascom v. Smith, 130. Baskins v. Shannon, 489, 490, 492. Bates t. Delavan, 293. v. Reynolds, 264. Bathgate v. Haskin, 295, 296, 297. v. Haskins, 313. Baum v. Grigsby, 34. Baxter v. Gilbert, 503. Bayaud v. Fellows, 449. Beach v. Cooke, 143, 230, 235, 236, 338, 392, 398. Beardsley t. Ontario Bank, 50. Bebee v. Bank of New York, 106. Beck v. Burdett, 493. Becker v. Howard, 259. Bedell v. Carll, 101. t. McClellan, 413. Bedford v. Backhouse, 157. Beecher v. Ackerman, 143, 212, 217, 218,235. Beektnan Fire Ins. Co. v. First Meth- odist Episcopal Church, 385. Beekman v. Gibbs, 333, 379. Beers v. Waterbury, 467, 502. Belden v. Meeker, 159, 160. Belknap v. Sealey, 294. v. Wendell, 470. Bell v. Birdsall, 373. v. Day, 207. v. Fleming, 61, v. Lent, 208. t. Mayor, &c. of New York, 82, 88, 205. Belmont v. Coman, 186, 193. v. Lane, 489. v. O'Brien, 359. Bemenfc v. Pittsburgh & Montreal Tfc Tl Co 50 504. Benedict v. Gilma'n, 85, 226, 227, 236, 237, 311, 365, 390, 391, 416, 417. v. Smith, 478, 495. Benham v. Rowe, 83. Benjamin v. Elmira, Jefferson & C. R. R. Co., 285, 505. Bennett v. Cook,- 88. v. Earll, 507. Benson v. Sayre, 257. Bentley v. Vanderheyden, 187. Berdan v. Sedgwick, 211, 213. Berry v. Mutual Ins. Co., 25, 146. Best v. Staple, 519, 520. Betsey, The, 525. Betts v. Birdsall, 373. Beyier v. Schoonmaker. 387, 423. Bicknell v. Byrnes, 285, 321, 324,356. Bidwell v. Northwestern Ins. Co.,178. Bigelow v. Bush, 247, 249, 290. v. Huntley, 439. Billington v. Forbes, 347. v. Wagoner, 68, 215. Binsse v. Paige, 186, 193. Birdsall v. Patterson, 206. Birkbeck v. Tucker, 522. Bishop v. Bishop, 46. v. Cook, 496. Bissell v. Hopkins, 428, 429, 477, 495. v. Kellogg, 61, 217. v. Pearce, 463, 464, 497. Bixby v. Smith, 358. Blaine v. Ship Charles Carter, 525. Blakely v. Calder, 358, 360. Blanchard y. Fearing, 532. Bleecker v. Graham, 422. Blood v. Humphrey, 197. Bloom v. Burdick, 401. Bloomer v. Sturges, 243,251,252,371. v. Waldron, 37. Bloomingdale v. Barnard, 128. Blydenburgh t. Northrop, 204, 383, 387. Blyer v. Monholland, 72,92,186, 187, 194. Bodine v. Edwards, 342. Bogert v. Furman, 385. v. Hertell, 101, 121. Bolles v. Duff, 81, 238, 263, 286, 303, 305, 389, 390, 391, 392. Bolton v. Brewster, 79. Bonesteel v. Flack, 441. Bool v. Mix, 466. Booth v. Swezey, 116. Boqutv. Coburn, 221. INDEX TO CASES CITED. XVU Bordewell v. Colie, 117, 118. Borst v. Boyd, 139, 328. v. Corey, 28, 141. Bostwick v. Menck, 270. Boswell v. Goodwin, 61, 62. .Boughton v. Smith, 211. Bowen v. Bell, 57. Bowers v. Johnson, 26, 103. Bowery Savings Bank t. Richards, 306. Bowes v. Seeger, 120. Boyd v. Dodge, 309. Boynton y. Jackway, 372. Braekett v. Barney, 207. v. Baum, 406. Bradley" v. Bosley, 28, 34. v. Copley, 513. Brady v. Waldron, 53. Brainerd v. Cooper, 221,222, 223, 236, 243, 865. Braman v. Hess, 214. Brasher v. Cortlandt, 357. Brazee v. Lancaster Bank, 100. Breese v. Bange, 49, 503. v. Busby, 345. Brevoort v. Jackson, 335. v. McJimsey, 43. v. Randolph, 86, 225. Brewer v. Staples, 91, 240. Brewster v. Baker, 428, 436. Bridge v. Hubbard, 212. Bridgen v. Carhart, 100. Brinckerhoff v. Lansing, 66, 154, 237, 392, 413. v. Marvin, 57, 61. v. Thallhimer, 328. Brinkerhoff v. Brown, 232. Briscoll v. Bronaugh, 34. Bristol v. Burt, 462. v. Morgan, 249. Brockway v. Wells, 237, 311,312,433. Broderick v. Smith, 77. Brooks v. Avery, 210. v. Bondsey, 522. Brown v. Bement, 429, 430, 445. v. Betts, 426. v. Blydenburgh, 118,123,124. v. Brown, 242. v. Cherry, 403. v. Clifford, 14. v. Cook, 444, 509, 513, 514. v. Dean, 13, 156. v. Dewey, 14, 21, 23. v. Frost, 335, 341, 342, 343, 344, 354, 369. v. Hermann, 198. B Brown v. Jones, 12. v. Keeney Settlement Cheese Association, 53, 288. v. Lapham, 130. v. Lynch, 12. v. Mott, 214. v. Nichols, 266. v. Piatt, 474, 483. v. Rich, 514. v. Wilbur, 170. Brownell v. Hawkins, 430, 432. Brumley v. Fanning, 53. Brundage v. Domestic & For. Miss. Soc, 246, 288. Bryan v. Butts, 15, 419, 420. Bryant v. Woodruff, 446. Buchan v. Sumner, 382. Buckley v. Wells, 197. Bucknal v. Roiston, 471. Buffalo Savings Bank v. Newton, 353. Buffalo & State Line R. R. Co. v. Supervisors of Erie, 496. Buffalo Steam Engine Works v. Sun Mutual Ins. Co., 178,179,180,454. Building Association v. Piatt, 65. Bulkeley.v. Dayton, 120. Bullard v. Raynor, 210, 211, 212. Bullis v. Montgomery, 479. Bullwinker v. Ryker, 270, 283. Bumpus v. Platner, 293. Bunacleugh v. Poolman,428,430,446. Bunce v. Reed, 405, 412, 421. Burchard v. Phillips, 385. Burdick v. Jackson, 27. v. McVanner, 430, 434, 445, 446. Burditt v. Hunt, 469. Burger v. Hughes, 27, 28, 134. Burke v. Nichols, 293. Burlingame v. Robbins, 33. Burnet v. Denniston, 100, 126, 222, 223, 403, 409. Burnham v. De Beyorse, 244. Buit v. Beer*, 189, 190, 192. v. Veeder, 86, 225, 276. Burroughs v. Reiger, 255, 257. Burt v. Dewey, 117, 118. v. Saxton, 64. Bush y. Lathrop, 104, 106, 110, 111, 112. v. Livingston, 209. Buskirk v. Cleveland, 473. Butler t. Miller, 66,132,442, 445,460, 462,477, 508,510. v. Tomlinson, 255, 257. v. Viele, 150, 365. XV111 INDEX TO CASES CITED. Butterwor-th v. O'Brien, 215. Calkins v. Calkins, 141. v. Isbell, 141, 228, 236, 312. v. Munsell, 237. Call v. Gray, 469. Calvo t. Davies, 73. Cameron v. Chappell, 206. v. Irwin, 231, 403. Camp t. Camp, 479. Campbell v. Birch, 434, 445, 446,457, 461. v. Hall, 262. T.Macomb, 54, 65,328,329. v. Parker, 432. v. Smith, 191. v. Swan, 411. v. Vedder,, 159, 160. Canal Appraisers v. People, 40. Candee v. Burke, 414, 415. Candler v. Pettit, 270. Card v. Bird, 203. Carman v. Pultz, 120, 127. v. Trude, 117. Carow v. Kelly, 21Q, 491. Carpenter v. Blote, 61, 467. v. Longan. 103, 458. v. O'Dougherty, 239. v. Simmons, 482. v. Town, 444,445,448,513. Can v. Carr, 11. Carrington v. Brentz, 260. Carson v. Ingalls, 209. Carter v. Rockett, 176. Cary v. White, 155. Caryl .v. Williams, 102. Case v. Boughton, 450, 455. v. Carroll, 220. • v. Hall, 117. Casey v. Buttolph, 79. Catlin v. Grissler, 323. v. Harned, 310. Cazett t. Hubbell, 342, 357. Central Gold Mining Co. v. Piatt, 414. Central National Bank of N. Y. v. Clark, 352. Chadwick v. Lamb, 442, 443. Chalmers v. Wright, 85, 420. Chamberlain v. Choles, 374. v. Dempsey, 212, 218, 309, 319. v. Lyell, 247, 281. v. Martin. 451, 452. Champion v. Brown, 33, 34. Champlain v. Johnson, 445, 446, 508, 509. Champlm v. Butler, 428, 522. v. Lay tin, 295. Champney v. Coope, 130. Chandler v. Bunn, 496. Chapin v. Shafer, 458, 466, 477. Chapman v. Draper, 259. v. Foster, 201. v. Jenkins, 65, 66. v. Robertson, 295. v. West, 259. Charter v. Stevens, 403, 434, 445, 446, 450, 451. Chase y. Peck, 27, 32, 34, 79, 230. Chatham National Bank v. O'Brien, 482. Chauncey v. Arnold, 36. Chautauqua Bank v. White, 114.. Cheesebrough v. Millard, 94,136,137. Cheney v. Woodruff, 175, 369. Cherry v. Monro, 222, 240. Chesterman v. Gardner, 293. Cholmondeley v. Clinton, 237. Christie v. Herrick, 250. Church v. Gilman, 37, 193. Clark v. Bush, 85. v. Dales, 64. v. Griffith, 448. v. Hall, 27. v. Havens, 258. v. Henry, 14, 429. v. Monroe, 203. v. Robins, 83. v. Sisson, 113. v. Smith, 83. Clarkson v. Skidmore, 384. Clason v. Corley, 301, 369. Claverly v. Phelp, 244. Cleveland v. Boerum, 245, 253, 260. Clift v. White, 130. Clinton v. Hope Ins. Co., 180. Clowes v. Dickinson, 92, 96, 337,339. Clute v. Robison, 104. Coates v. Cheever, 204, 205. Cobb v. Thornton, 284, 285. v. Titus, 214. Codman v. Freeman, 470. Coe, trustee v. Pennock, 50. Coggell v. Hartford & N. H. R. R. Co., 441. Cogswell t. Cogswell, 29, 90. Cohoes Co. v. Goss, 400, 402, 419. Coit v. Fougera, 32. v. Houston, 125. Cole v. Mann, 438. 441. v. Moffitt, 400. v. Sackett, 60, 133. INDEX TO CASES CITED. XIX Cole v. Savage, 218,412. Coleman v. Van Rensselaer, 102. Coles v. Clark, 442, 462, 510. v.Coles, 15, 203. v. Forrest, 244. ' Collier v. "Whipple, 339, 341, 349. Collins v. Standish, 421. • v. Torry, 203, 205. Collman v. Collins, 465. Commercial Bank v. Cunnlngham,57. Comstock v. Drohan, 396. Concklin v. Hall, 360. Conderman v. Smith, 472. Condit v. Baldwin, 207. Congregation Beth Elohim v. Central Presbyterian Church, 41. Conkey -v. Hart, 443. Conkling v. Shelley, 486. Connah v.. Hale, 462. Connecticut v. Jackson, 87, 88. Conrad v. Atlantic Ins. Co. 57. Conro v. National Protection Ins. Co., 496. Conway's Executors v. Alexander, 19, 20. Cookv. Banker, 33. v. Barnes, 208. v. Kraft, 33, 86. v. Mancius, 379. v. Travis, 153, 154, 157. Coolidge v. Brigham, 117. Cooper v. Douglass, 471. v. Newland, 101, 102. Cope v. Wheeler, 35, 208, 385, 422. Cord v. Hirsh, 247. Corliss v. Van Sagin, 46. Corn Exchange Ins. Co. v. Babcock, 202. Cornell v. Prescott, 72, 92, 186, 187, 241. Corning v. Smith, 246, 285, 288, 368. Cortelyou v. Lansing, 428, 430. Corwin v. Wesley, 117. Coster v. Clarke, 358. Matter of, 124. Costigan v. Newland, 423. Coutant v. Servoss, 37, 93, 138, 292. Covell v. Tradesmen's Bank, 109. Cowdrey v. Coit, 293. Cox v. McBurney, 385. v. Wheeler, 240, 412. Crafts v. Aspinwall, 30. Craig v. Tappin, 60, 61,63,450,455. Cram v. Bradford, 278. v. Hendricks, 214. Cramer v. Benton, 298. Crane v. Deming, 61. v. Hubbell, 209. v. Stiger, 347. v. Turner, 35, 147, 154. v.Ward, 76. Cresson v. Stout, 48. Crippen v. Heermance, 28, 134, 206, 209. Crocker v. Crocker, 105. Croft v. Bunster, 103. Crofut v. Wood, 150. Crooke v. O'Higgins, 248. Crosswell v. Allis, 469. Culver v. Sisson, 455. Cumberland v. Codrington, 90. Cumminss v. Harris, 464. Cunningham v. Cassidy, 96, 334, 345. v. Knight, 99. Currie v. Cowles, 298. Curtis v. Bush, 293. v. Hitchcock; 258. v. Leavitt, 215. v. Tyler, 186, 188, 249, 283. Curtiss v. Tripp, 139. Cushman v. Jewell, 436, 437. Cutler v. Davenport, 35. v. Thurlo, 522. Cutjts v. Guild, 112. Dale v. McEvers, 86, 222, 225. Daly v. Burchell, 247. Dane v. Mallory, 445, 448. Darcey v. Blake, 302. Darling v. Rogers, 38. Darvin v. Hatfield, 238. Dauchy v. Bennett, 223. Daughady v. Paine, 34. Davies v. Austin, 104. Davis v. Dendy, 82. v. Duffie, 233, 238. Davison v. DeFreest, 294, 386. Day v. Mooney, 130. v. Perkins, 25, 49, 269. Dean v. McGhie, 522. Dearborn v. Cross, 64. DeForest v. Farley, 333, 360, 379. v. Fulton Fire Ins.Co.,176. DeGrant v. Graham, 393. Delacroix v. Bulkley, 64. Delancey v. Stearns, 108. Delaplaine v. Lewis, 247. DeLa Vergne v. Evertson, 311, 387. Delaware v. Ensign, 482, 489, 492. Delaware Bank v. Jarvis, 117, 252. Demarest v. Wynkoop, 228, 402, 415, 420. XX INDEX TO CASES CITED. Demainville v. Manu, 45. Denning v. Smith, 169, 170, 171. Denston v. Morris, 293. Denton v. Nanny, 204, 243, 387. v. Noyes, 266. Depew v. Dewey, 343. De Pierras v. Thorn, 27. De Euyter v. Trustees of St. Peter's Church, 40, 383. Despard v. Walbridge, 14, 428. De Wolf t. Johnson, 212. Dey v. Dunham, 14, 151, 156. Dezell y. Odell, 114. Dias v. Merle, 233, 234. Dikeman v. Puekhafer, 444, 497. Dillaye v. Commercial Bank of Whitehall, 112. Dillingham v. Bolt, 500, 501, 506. Dimon v. Bridges, 77. v. Dunn, 77, 148. Dings v. Parshallj 127, 221. Dinkelspiel v. Franklin, 115. Divver v. McLaughlin, 445, 467, 484. Dix v. Van Wyck, 210. Doane v Eddy, 477.' Dodds v. Johnson, 483. Dodge v. Crandall, 64, 65, 289. v. Potter, 469, 496, 497. v. Wellman, 11. Dollard v. Taylor, 353. Doolittle v. Lewis, 122, 242, 243, 399, 400,' 403. Dorn v. Harrahan, 186. Douglass v. Peele, 147. , v. Satterlee, 121. v. Woodworth, 363, 384. Dowe t. Schutt, 206. Dows v. Congdon, 237, 353. Doyle v. Peerless Pet. Co., 157. Draco, The, 525. Draper v. Romeyn, 68. v v. Stouvenel, 199, 200. v. Trescott, 68, 215. Dresser M'f'g Co. v. Waterston, 436. Driggs v. Simson, 135. Drury v. Clark, 247, 249. 270. Dubois v. Hull, 29, 31, 34. Dudley v. Hawley, 446, 447. Duke of Bedford, The, 525. Duncan v. Dodd, 344, 350, 352. Dunham v. Dev, 65, 156. v. Minard, 139, 359. v. Whitehead, 481. Dunkley v. Van Buren, 282. Dunning v. Ocean National Bank, 386, 425. Dunning v. Stearns, 433, 470, 473. Durant v. Einstein, 434. Dusenbury v. Hulbert, 98, 291. Dutch Church v. Mott, 40, 41. Dwight v. Newell, 33. v. Phillips, 259, 420. v. Webster, 76, 77. Dyett v. Pendleton, 293. Eagle Eire Ins. Co. v. Cammet, 244, 245. v. Lent, 243, 246, 288, 293, 368. v. Pell, 86, 133, 225. Eagle Ins. Co. v. Elanagan, 376,378. Eastburn v. ,Kirk, 309. Easton v. Pickersgill, 322. Eaton v. Jaques, 45. t. Simonds, 83. Eckerson v. Vollmer, 266. Eckford v. De Kay, 14. Eddy v. Graves, 64. v. Traver, 94, 136. Edgell v. Hart, 470, 482, 485. Edwards v. Bodine, 293, 294. v. Farmers'- Fire Ins. & Loan Co., 125, 232, 398. Eitel v. Bracken, 113, 114. Elder v. Rouse, 455. Elliott v. Wood, 13, 209, 400. 403, 412, 455. Ellis v. Messervie, 104. Ellison v. Pearce, 337. Ellsworth v. Lockwood, 128, 223, 240, 334, 335, 410, 411. Elmendorf v. Lockwood, 248. Elwell v. Chamberlin, 215. Elwood v. Deifendorf, 69. Ely v. Carnley, 498, 501. v. McNight, 104, 185, 187. v. Scofield, 119, 142, 160. Emanuel College v. Evans, 7. Engle v. Underhill, 396. Ennis v. Harmony Fire Ins. Co., 178. Ensign v. Coibum, 52, 53. Ensworth v. Fanning, 290. v. Lambert, 243. Equitable Life Ins. Co. v. Stevens, 395. Estevez v. Purdy, 207. Evans v. Ellis, 104. Everitt v. Huffman, 277. Evertson v. Booth, 95. v. Evertson, 104. v. Sawyer, 45. INDEX TO CASES CITED. XXI Evertson v. Tappen, 204. Excelsior Fire Ins. Co. v. Royal Ins. Co. of Liverpool, 175, 181, 183. Exeter, The, 525. Eyster v. Gaff, 346. Fairbanks v. Bloomfleld, 443, 503, 508, 526. v. Phelps, 436, 462. Pake v. Smith, 117. Palis v. Conway Ins. Co., 220. Panning v. Dunham, 216, 218, 238. Farmers' Bank v. Cowan, 446, 447, 508. Farmers' Loan & Trust Co. v. Car- roll, 13. Farmers' Loan & Trust Co. v. Hen- drickson, 50. 504, 5C5. Farmers' Loan & Trust Co. v. Dick- son, 255, 257. Farmers' Loan & Trust Co. v. Malt- by, 157. * Farmers' Loan & Trust Co. v. Mil- lard, 388. Farmers' Loan & Trust Co. v. Sey- mour, 339, 376, 378. Farmers' Loan & Trust Co. v. Wal- worth, 143. Farnham v. Mallory, 284. Farrar v. Chauffetete, 49, 462. Farrell v. Hildreth, 509. Faure v. Winans, 86, 87, 180, 225, 276. Fellows v. Commissioners of Loan of Oneida Co., 207. v. Van Hyring, 466, 497. Fenn v. Bittleson, 458. Ferguson v. Crawford, 266. v. Ferguson, 282. v. Hamilton, 113. v. Kimball, 304, 337, 402. v. Lee, 446, 509. v. Smith, 265. t. Union Furnace Co., 428, 429, 477. Ferris v. Crawford, 72, 92, 186, 240. v. Ferris, 76, 77. Field v. Hawxhurst, 379. Finlay v. Simpson, 186. First Nat'l Bank of Canandaigua v. Garlinghouse, 202. First Nat'l Bank of Cincinnati v. Kelly, 431, 502, 526. Fish v. Dodge, 185. v. Howland, 31, 34. Fish v. Thomas, 523. Pishburne v. Kimhardt, 468. Pitch v. Cotheal, 129. v. Forman, 120. v. Humphrey, 502. t. Newberry, 464. Fitzsimmons v. Beam, 206. Flagg v. Mann, 21, 153. v. Munger, 193. Fleming v. Gilbert, 64. Fletcher v. Morey, 27. Flynn v. Powers, 199, 292. Fogal t. Pirro, 79, 85, 227, 228. Poote v. Lathrop, 266. Ford v. Cobb, 47. v. David, 192, 456. v. Ransom, 443, 449. v. Williams, 482, 486, 510. Foreman v. Foreman, 386. Forman v. Proctor, 474. Fortv.Burch, 96, 106, 150, 155, 159. 369. Foster v. Beals, 116, 118, 119. •v. Beardsley Scythe Co., 150. v. Van Reed, 180, 183. Fox v. Burns, 445. v. Lipe, 37, 79, 397. v. McGregor, 464. Francis v. Church', 347, 352. Franklin v. Van Cott, 383. Frecking v. Rolland, 201. Freeman v. Auld, 212, -299. v. Munns, 343. v. Schroeder, 383. Freligh v. Piatt, 41. Frelinghuysen v. Golden, 246, 288, 301, 303, 304, 368, 372. French v. Baron, 82. v. Kennedy, 88. v. New, 270, 283. v. Shotwell, 211. Prink v. Hampden Ins. Co., 179. v. Thompson, 419. Frisbee v. Thayer, 17. Frisbie v. Lamed, 66, 133. Frost v. Beekman,100, 148, 149, 153, 156. v. Bevins, 336. v. Frost, 96. v. Koon, 75, 138, 270, 368. v. Mott, 477, 489, 492. v. Myrick, 347. v. Peacock, 204, 387. v. Warren, 481, 483, 488. v. Yonkers Savings Bank, 128, 223. INDEX TO CASES CITED. Frye v. Bank of Illinois, 61. Fuller v. Acker, 445, 446. v. "Van Geesen, 362, 369. Fullerton v. McCurdy, 19, 23. Fulton v. Matthews, 64. v. Whitney, 354. Furniss v. Brig Magoun, 525. t. Furniss, 117. Gage v. Brewster, 226, 237, 236, 243. Gahn v. Niemcewicz, 66, 67, 69, 139. Galatian v. Erwin, 298. Galen v. Brown, 469, 508. Gallagher v. Egan, 271, 308, 310. Garber v. Henry, 63. Gardiner v. Schermerhorn, 346, 350, 351. Gardner v. Finley, 46. v. Heartt, 55, 56. v. McEwen, 471, 483", 487. Garlick v. James, 434. Garnsey v. Eogers, 187, 189, 190, 191, 192. Garr v. Bright, 308, 309. Garson v. Green, 27, 31. Gaskin v. Anderson, 360. v. Meek, 317, 326. George v. Arthur, 405. Gerry v. Post, 267, 271. Gerwig v. Sitterly, 209. Gibbes v. Jenkins, 45. Gibson v. Renne, 64. Giddings v. Seward, 124. Gilbert v. North Am. Fire Ins. Co., 193. Giles v. Baremore, 139. v. Comstock, 369. Gill v. Lyon, 92, 337. Gillespie v. Moon, 289. Gillett v. Balcom, 51, 269. Gillig v. Maass, 97, 102, 147, 161. Given v. Kemp, 212. Gleason v. Moen, 298. Globe Ins. Co. v. Lansing, 282. Glover v. Payn, 19, Godfrey v. Watson, 82. Gfielet v. McManus, 158. Goldsmith v. Brown, 68, 69, 214, 283. v. Osborne, 345. Gomez v. Kamping, 438. Goodall's Case, 7. Goodhue v. Churchman, 279. Goodrich v. Downs, 487. v. Willard, 464. Goodwin v. Gilbert, 186. v. Kelly, 480, 503. Goodyear v. Brooks, 451. Gordon v. Harper, 513. v. Massachusetts F. & M. Ins. Co., 174. Gould v. Bennett, 264. . v. Browne, 496, 504. v. Gager, 348. v.Libby, 348. v. Marsh, 103, 109, 458. v. Mortimer. 341, 342. Goulet v. Asseler, 459. 462, 508, 509, 513, 514, 516. Gouverneur v. Ehnendorf, 293. t. Lynch, 92, 337. Grady v. Ward,*359, 360. Graham v. Bleakie, 357, 359, 360. v. Linden, 125, 204. Grant v. Bissett, 100. v. Duane, 221/232. v. Skinner, 439. v. Spencer, 269. v. Tallman, 293, 297. Graves v. Blanchard, 308. Green v. Butler, 220. v. Hart, 101, 120. v. Morse, 212, 213. Greene v. Deal, 96, 97, 107, 147, 158, 159. Greenvault v. Davis, 117, 293. Gregory v. Campbell, 278, 332, 335. v. Thomas, 66, 132, 434, 446, 506. Griffin v. Allen, 47. v. Burtnett, 61. Griffith v. Griffith, 260. v. Hadley, 345. Grimstone v. Carter, 151, 156. Grinnan v. Piatt, 65. Griswold v. Fowler, 243, 248, 260, 335. v. Griswold, 120. v. Miller, 253, 260. v. Sheldon, 471, 476, 477, 484, 497. Groff v. Morehouse, 407, 416. Grosvenor v. Atlantic Fire Ins. Co., 177. v. Day, 291, 397, 412. Grover v. Wakeman, 487. ' Guion v. Knapp, 69, 75, 92, 03, 136, 137, 138, 337. INDEX TO CASES CITED. xxm Hadley v. Chapin, 269. Haines v. Beach, 226, 243. v. Taylor, 351. Hale v. Clausen, 342, 353. v. Gouverneur, 76. v. Omaha National Bank, 461. v. Pattern, 78. v. Sweet, 493, 512. Hall v. Bamber, 329. v. Constant, 64. v. Nelson, 243, 247, 255, 258, 264, 290. v. Sampson, 443, 508, 509, 510. v. Tuttle, 428, 495, 508. v. Van Cleve, 14. Hallock v. Smith, 30, 31, 33, 244. Halsey v. Christie, 507. v. Beed, 72, 92, 93, 186, 187, 240, 338. Halstead v. Bank of Kentucky, 157. v. Swartz, 434,445,446,448. Hamill v. Gillespie, 193, 456, 508. Hamilton v. Fowlkes, 34. v. Rogers, 474. Hamlin t. McCahill, 281. Hancock v. Hancock, 242, 247, 281. Hanford v. Artcher, 490, 509. Hanley v. Cramer, 259. Hansard v. Hardy; 392. Hardenbergh v. Schoonmaker, 148. Hardin t. Hyde, 212. Hare v. Van Dusen, 32. Harrington v. Slade, 260. Harris v. Fly, 275. v. Jex, 126, 127. Harrison v. Simons, 267. v. Trustees, &c, 220. Hart v. Carpenter, 439. v. Chalker, 63. v. Ten Eyck, 448, 451. v. Wandle, 93, 365, 367. Hartley v. Harrison, 194,212,21 3,298. v. Tatham, 104, 299, 458. Hasbrouck v. Irounsbury, 440. v. Shuster, 270. t. Vandervoort, 432. Hasbrouk v. Tappen, 64. Haskins v. Patterson, 430, 432, 451. v. Kelly, 432, 502. Hatfield v. Reynolds, 123. Hathaway v. Brayman, 443, 462, 509. v. Howell, 496. Hawley v. Bradford, 203, 204, 205. v. Cramer, 152. v. Foote, 66, 133. Hayden v. Bucklin, 253. Hayes v. Thomae, 267. v. Ward, 68, 73, 95, 136, 241 . Hayman v. Jones, 505. Haywood v. Nooney, 99. v. Shaw, 153, 3S3. Hazelton v. Wakeman, 353. Heister v. Fortner, 156. Hemans v. Lucy, 12. Henry v. Davis, 8, 219, 238, 432. v. Root, 293. Hepburn v. Griswold, 1 26. Herkimer v. Rice, 174. Herrick v. Borst, 71. Herring v. Hoppock, 435, 439. v. Willard, 435. Hesketh v. Stevens, 522. Hetzell v. Barber, 119, 126. Hewes v. Wiswall, 153. Hewson v. Deygert, 334. Heyer v. Deaves, 317. v. Pruyn, 140, 141. Hickock v. Scribner. 233. Hicks v. Williams, 496, 497, 521. Hill v. Beebe, 66, 132, 133, 457, 505. v. Grant, 19, 20. v. McReynolds, 278. Hinman v. Judson, 447. Hinsdale v. Humphrey, 186. Hirsch v. Livingston, 244, 358, 362. Hiscock v. Phelps, 17. Hitchcock v. Harrington, 15, 203. v. Northwestern Ins. Co., - 98, 291. Hodges v. Tennessee Marine and Fire Ins. Co.. 14, 174. Hodgson v. Butts, 522. Hoey v. Kinney, 386. Holbrook v. American Ins. Co., 180. v. Receivers of the Ameri- can Fire Ins. Co., 296. Holcomb v. Holcomb, 246, 247, 381, 288, 368. Holden v. Gilbert, 76, 295. Holmes v. Grant, 14, 20, 22. v. Holmes, 127, 205. v. Remsen, 121. Holridge v. Gillespie, 45, 219. Hone v. Fisher, 13, 102, 133, 281. Hope Fire Ins. Co. v. Cambrelling, 153. Hopkins v. Garrard, 34. Hoppock v. Conklin, 349. Horn v. Keteltas, 14, 20, 21. Hornby v. Cramer, 2'26, 406, 409. Horton v. Davis,' 519. v. McCoy, 385. XXIV INDEX TO CASES CITED. Hosford v. Nichols, 35. Hotchkiss v.Clifton Air Cure,345,357. v. Hunt, 444. House v. House, 90, 205. Hovey v. Hill, 261. How v. Vigures, 7. Howard v. Hatch, 405, 419. Howard Ins. Co. v. Halsey, 69, 75, 136, 137, 152. Howard v. Odell, 522. Howe, Matter of, 26, 33. Howell v. Mills, 344, 350, 353. v. Ripley, 301, 302. Howland v. Willett, 444, 508, 509. Hoyle v. Plattsburgh & Montreal R. R. Co., 50, 496, 504. Hoyt v. Doughty, 27. v. Hoyt, 160. t. Martense, 35, 239, 251, 371. Hubbard t. Cummings, 292. v. Savage, 57, 63. Hubbell v. Moulson, 17, 79, 231, 397. v. Sibley, 227, 409, 414. Huffman v. Hulbert, 67, 71. Huggans v. Fryer, 443, 450, 452, 455. Hughes v. Edwards, 140. v. Kearney,'33. v. Schraff, 23. Hull v.Carnley, 459, 462, 508,509, 513. Hulsen v. Walter, 446, 451, 461, 462, 504. Hunt v. Chapman, 295, 315. v. Johnson, 147. v. Keech, 76. v. Wallis, 279. Hunter v. Le Conte, 125. Hurmden v. Roberts, 85. Husted v. Dakin, 380. Hutchings v. Munger, 486, 438. Hutchins v. Hebbard, 114. Hyde v. Tanner, 43. Hyland v. Stafford, 403. Iddings v. Bruen, 306. Ingalls v. Morgan, 94, 95, 336, Ingraham v. Disborough, 104. Innes v. Purcell, 326. Irving v. De Kay, 38. Jackson v. Allen, 78. v. Austin, 98, 291. v. Blodgett, 101. v. Bowen, 226,391,414,416. v. Bradford, 300. v. Bronson, 101. v. Burgott, 22, 439. Jackson v. Cadwell, 152. v. Colden, 150, 420. v. Crafts, 125. v. Davis, 150. v. De Witt, 203. v. Dominick, 209, 403. v. Dubois, 16, 99, 397. v. Edwards,204,343,358,362. v. Given, 154. v. Henry, 106,400, 403, 415. v. Littell, 17. v. Losee, 253. v. McChesney, 154. v. Perkins, 148, 193, 194. v. Phillips, 22, 439. v. Phipps, 193. v. Post, 96, 151, 158. v. Rhoades, 170. v. Richards, 22,147,150,194, 439. v. Sackett, 141. v. Sheldon, 78. v. Slater, 141, 228. v. Stackhouse, 120. v. Stafford, 397. v. Turner, 402. v. Tuttle, 210. v. Van Valkenburgh, 106, 150, 151, 154, 156. v. Voorhis, 169. v. West, 22, 150,439. v. Willard, 15, 16, 102. James v. Hubbard, 92, 95, 96, 337, 339, 384. v.Johnson, 14, 17, 60, 118, 130, 156. v. Morey, 17, 104, 130, 159. v. Oakley, 212, 466. v. Stull, 401. Jarvis v. Rogers, 60. Jay v. Ensign, 310, 311'. Jencks v. Alexander, 88, 334, 408, 409,410,412. Jenkins v. v Continental Ins. Co., 223, 224. v. Freyer, 92, 337. v. Hinman, 302. Jerusalem, The, 525. Jewell v. Harrington, 298, 299, 300. Jewett v. Miller, 114. Johnson v. Corbett, 29, 71, 90, 94. v. Crofoot, 428, 443. v. Curtis, 477. v. Gere, 294. v. Hart, 2S0. v. Stagg, 146. INDEX TO, CASES CITED. XXV Johnson v. White, 53, 54. v. Zink, 72, 73, 232, 224, 240. Jones t. Clark, 367. v. Howell, 506. v. Merchants' Bank of Albany, 141. v. Phelps, 96, 147, 309, 310. v. Richardson, 470. v. St. John, 246, 288, 368. v. Smith, 153. v. Stienbergh, 214, 283, 284. v. Thurloe, 463. Judd v. O'Brien, 408. ' v. Seaver, 209. v. Seeking, 130. Judson t. Easton, 445. Jumel v. Jumel, 72, 91, 92, 186. Kay v. Whittaker, 243, 247. Keating v. Price, 64. Keeler v. Davis, 114. Kellogg v. Ames, 1 87. v. Howell, 343, 344, 349. v. Rand, 92, 93, 337, 338. v. Smith, 16, 103, 109, 161. Kelly v. Breusing, 489. v. Israel, 320. v. Searing, 274, 275, 276. Kemble v. Wallis, 125. Kendall v. Treadwell, 390, 391. Kenicott v. Supervisors, 103. Kenny v. Planer, 437. Kernochan v. N. Y. Bowery Fire Ins. Co., 175, 184. Kershaw v. Thompson, 371. Kerwin, Ex parte, 36. Ketchum v. Jauncey, 59, 61. Kidd v. Conway, 198. King v. Badeau, 361. v. Baldwin, 68, 69, 70, 73, 240, 241. v. Duntz, 312, 400, 406. v. McVickar, 95, 221, 297, 298. v. Morris, 348. v. Piatt, 325, 339, 346, 353. v. Richards, 464. v. St. Michaels, 9. v. Smith, 53. v. State M. F. Ins. Co., 85, 183. v. West, 380. v. Whitely, 186, 188, 191, 192. v. Wilcomb. 47, 52. Kipp v. Brandt, 240. Kirby v. Fitzgerald, 423. Kirkwood v. Thompson, 85. Kitchen v. Lee, 292. Kittle v. Van Dyck, 203, 250. Klock v. Cronkhite, 135, 408, 409. Knapp v. Alvord, 432. v. Burnham, 266,375,278,282. v. Maltby, 36. v. Smith, 199. Kneettle v. Newcomb, 114. Knickerbacker v. Eggleston, 280, 316, 340. Knickerbocker Life Ins. Co. v. Hill, 210. Knickerbocker Life Ins. Co. v. Nelson, 263. Knight v. Maloney, 360. Knox v. Lee, 126. Kohler v. Kohler, 363. Kortright v. Blunt, 125. t. Cady, 15, 16, 80,86, 124, 125, 127, 225. v. Smith, 251, 290. Kramer v. Trustees of the Farmers' Bank, 59, 61. Lady Superior v. McNamara, 37. La Farge Fire Ins. Co. v. Bell, 92, 93, 337. La Farge v. Herter, 215. v. Van Wagenen, 323, 345. Laflin v. Griffiths, 47, 49, 55. Laing v. Titus, 272. Lambert v. Paulding, 511. L'Amoareux v. Vandenburgh, 104. Lamport v. Beeman, 29, 90. Lane v. Hitchcock, 55, 56. v. King, 51. v. Ludlow, 32, 33. v. Shears, 13. Langdon v. Buel,101, 428,430,445,457. Langford v. Barnard, 7. Langton v. Horton, 522. Lansing v. Capron, 328. v. Goelet, 389, 451. v. McPherson, 350. v. Woodworth, 57, 61. Lathrop v. Godfrey, 296, 297. v. Heacock, 266. • Latimer v. Wheeler, 506. Lattimore v. Harsen, 64. Laverty v. Moore, 369. Lawrence v. Brown, 114. v. Clark, 155. v. Cornell, 359, 384. v. Delano, 364. v. Fanners' Loan and Trust Co., 8, 13, 400. XXVI INDEX TO CASES CITED. Lawrence v. Pox, 189, 192. v. Lawrence, 241, 242. v. Tucker, 58. Lawtou v. Sager, 387. Layman v. Whiting, 419. Leahy v. Smith, 302. Leavenworth v. Cooney, 204. v. Packer, 298. Leavitt v. Cruger, 265. v. Tylee, 259. Ledyard v. Butler, 17, 158. Lee v. Huntoon, 478, 480, 495. v. Parker, 246, 285, 288, 368. v. Porter, 292. v. Methodist Episcopal Church of Fort Edward, 41. , Leeds v. Cameron, 57. Leet v. McMaster, 408, 414. Lefevre v. Laraway, 344, 350, 354. Leggett v. McCarty, 293. v. Mutual Life Ins. Co. of New York, 244. Leitch v. Wells, 257. Leland v. The Medora, 525. Lempke v. Peterson, 462. Lenihan v. HamaDn, 245. Lentz v. Craig, 321. Leonard v. Morris, 249, 250, 283. Lesley v. Johnson, 113, 209. Leslie v. Hoffman, 466. Lester v. Barron, 299. Levin v. Russel^, 503. Levy v. Mayor, &c, of New York, 56. v. Welsh, 471. Lewis, Ex parte, 525. Lewis v. De Forest, 61. v. Graham, 432. v. Palmer, 445, 505. v. Smith, 246, 285, 288, 368. v. Stevenson, 507. Lieby v. Wolf, 157. Livingston v. Byrne, 351. v. Dean, 104, 105, 106. v. Harris, 217, 218, 236. v. Mclnlay, 57. , v. Mildrum, 286, 333, 379. v. Newkirk, 29, 90. Livor v. Orser, 445, 509, 511. Lofsky v. Maujer, 302. Loomer v. Wheelright, 292. Loomis v. Loomis, 11. Lord v. Lane, 130. Losey v. Simpson, 154. Louis v. De Forest, 59. Louisville R. B. Co. v. Letson, 496. Lovett v. German Reformed Church, 2G9, 368, 374. Low v. Purdy, 354, 401, 406. Lowry v. Beach, 221. Luce v. Hinds, 283. Luckey v. Gannon, 178. Ludden v. Hazen, 440. Ludington v. Slauson, 297. v. Taft, 308. Lyle v. Ducomb, 57. Lyman v. Sale, 328, 329. Lynch v. Cunningham, 78. v. Livingston, 148. Lynde v. Budd, 292. v. O'Donnell, 267, 272, 372. Lyon v. Coburn, 442, 460, 462, 510. McBride v. Farmers' Bank of Salem, 243. McBurney v. Wellman, 11, 14, 397. McCarthy v. Graham, 282. McCotter v. Jav, 341, 342, 351. McCoy v. O'Donnell, 284. McCrackan v. Valentine's Executors, 277. McCrea v. Purmort, 57. McCullough v. Colby, 270. McDaniels v. Colviu, 62. McGiven v. Wheelock, 135. McGown v. Sandford, 324. v. Smith, 203. v. Wilkins, 358. v. Yerkes, 245, 290. McGregor v. McGregor, 241. Mcllvain v. Kadel, 196, 197. Mclntyre v. Humphries, 14. v. Scott, 522. Mack v. Mack, 101. McKay v. Green, 27. Mackie v. Cairns, 487. McKillip v. McKillip, 32. McKinster v. Babcock, 58, 59, 467. McKinstry v. Curtis, 92, 223. v. Mervin, 100, 130, 391. McLaren v. Hartford Fire Ins. Co. , 175. v. Watson's Ex'rs, 101. McLean v. Lafayette, 241. v. Tompkins, 223, 272. v. Towle, 222, 240. v. Walker, 430. McMechan v. Griffing, 153. McNeil v. Tenth National Bank, 111, 431, 434. Macomber v. Dunham, 88. INDEX TO CASES CITED. XXVll Macomber v.- Cambridge Mut. Fire Ins. Co., 177. McReynolds v. Munns, 281, 353. McEimmon v. Martin, 34. Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 40, 42, 79. Madonna D'Idra, The. 525. Main t. Schwarzwaelder, 46. Malcolm v. Allen, 78, 270, 333. Mallory v. West Shore Hudson River R. R. Co., 77. Manhattan Brass and Manuf. Co. v. Thompson, 201. Manly v. Slason, 34. Mann v. Cooper, 284. Manning v. Monaghan, 459, 504, 507, 508, 509, 513, 514, 515, 516. v. Moscow Presbyterian So- ciety, 41. March v. Ludlum. 170, 344. Markham v. Jaudon, 431. Marks v. Pell, 14, 228. Marquat v. Marquat, 26, 27. Marsden v. Cornell, 500, 506, 51 9. Marsh v. Lawrence, 428, 477, 508. v. Pike, 72, 73, 92, 186, 187, 233, 240, 241. v. Ridgway, 319, 350. Marston v. Yultee, 483. . Martin v. Hill, 468. v. Mowlin, 9, 120. Martine* v. Lowenstein, 266. Marvin v. Vedder, 65. Mason v. Anthony, 115. v. Lord, 104, 210. Matthews v. Aikin, 92. v. Coe, 210. v. Duryee,204,383,387,423. Mattingly v. Darwin, 469. Mattison v. Baucus, 442, 460, 462, 508, 509, 510. May v. May, 321, 342, 348, 362. Mayer v. Salisbury, 309. Mazuzan v. Mead, 214. Mead v. York, 65. Mechanics' Bank v. Edwards, 212. v. N. Y. & N. H. R. R. Co., 116. v. Townsend, 115. Meech v. Patchin, 506. Megary v. Funtis, 123." Mercantile Mut. Ins. Co. v.Calebs,183. Merchants' Bank v. Thomson, 246, Merchants' Ex. Nat. Bank v. Com- mission "Warehouse Co., 210, 213, N 215, 216, 217. Merchants' Ins. Co. v. Hinman, G8, 69, 241. Merchants' Ins. Co. of New York v. Hinman, 345. Meriam v. Harsen, 148. Merrill v. Green, 1S2. Merrills v. Swift, 59, 61. Merrittv. Bartholick, 15, 16, 102. v. Lambert, 125. v. Lincoln, 68, 69. 71. Merwin v. Star Fire Ins. Co., 177. Methodist Episcopal Ch. v. Jaques, 308. Mickles v. Dillaye, 84, 85, 231. v. Townsend, 17, 18, 104, 106, 129, 130. Millandon v. Brugiere, 309. Miller v. Avery, 294. v. Burroughs, 88. v. Case, 339, 376, 378. v. Holbrook, 64. v. Hull, 323, 345, 410. v. Kerr, 215. v. Lockwood, 59, 477, 481, 486, 488. v. McCan. 67, 68. v. Plumb, 46. Milliman v. Neher, 470, 472. Mills v. Comstock, 156. v. Dennis, 263, 277, 287, 335, 390. v. Van Voorhis, 203, 243, 266. v. "Watson, 72, 92. Millspaugh v. McBride, 130. Miln v. Spinola, 522. Miner v. Beekman, 85, 227, 228, 229, 235. Minnesota Co. v. St. Paul Co., 50. Minor v. Terry, 193. Minturn v. Farmers' Trust Co., 216. Mitchell v. Bartlett, 301, 369, 419. v. Cook, 119. Mittnacht v. Kelly, 485, 487. Mohawk Bank v. Atwater, 334. , Mollau v. Griffith, 90. Monell v. Smith, 57, 59. Montague v. Dawes, 400. Moore v. Cable, 82, 83, 85, 228. v. Hamilton, 131. v. Metropolitan Nat'l Bank, 104, 111. v'. Moore, 93. v. Sloan, 119, 160. XXY111 INDEX TO CASES CITED. Morford v. Davis, 214, 215. Morgan v. Plumb, 392. Morrell v. Dickey, 122, 242. Morris v. Floyd, 212. .. v. Keyes, 148. v. Morange, 286. v. Mowatt, 16, 358, 302, 363. v. Wadsworth, 148. v. Wheeler, 247, 290, 309. Morrison v. Brand, 20, 22, 439. v. Morrison, 127, 282. Moses v. Murgatroyd, 385. v. Walker, 507. Mosley v. Marshall, 91. Mott v. Walkley, 343, 344, 350, 354. Mower v. Kip, 276. Mowry v. Bishop, 88. v. Sanborn, 405, 408, 420. Moyer t. Hinman, 259. Mulford v. Muller, 14. Munn v. Commission Company, 214. Munro v. Merchant, 79. Murdock v. Empie, 347. v. Gifford, 48. Murray v. Ballou, 253. v. Barney, 212. v. Blatchford, 120, 121. v. Burling, 462. v. Judson, 210, 213. v. Lylburn, 104, 105, 106, 253. v. Smith, 185, 193. v. Walker, 14, 397. Mutual Life Ins. Co. v. Bowen, 210, 379, 380, 385. v. Salem, 381. v. Tallman,176. Myrick v. Selden, 257. Nash v. Ely, 480, 503. National Bank of Norwalk v. Lanier, 27. National Eire Ins. Co. v. Loomis, 356, 357. V. McKay, 17, 295, 296. Neidig v. Eifler, 428. Neimcewicz v. Gahn, 69, 74, 137, 139. Nelson v. Montgomery, 309. Newell v. Hill, 186. v. Warner, 470, 488. t. Warren, 495, 499, 518. Newman v. Finch, 445, 509. Newton v. Stanley, 241. N. Y. Fire & Marine Ins. Co. v. Burrell, 312. N. Y.L. I. & Trust Co. v. Bailey, 244. v. Covert, 140. v. Cutler, 92, 337,339,372. v. Manning,88. v. Milnor, 93, 135,281,288, 340. v. Rand, 372, 374. v. Smith, 118, 159, 160. v. Vanderbilt, 92, 384, 387. N.Y.Life Ins. Co. v. Glass, 303. v.White, 156, 157. Nicholl v. Nicholl, 341, 343. Nichols v. Hill, 300. v. Iremonger, 300. v. Mead, 509. v. Smith, 396. Nitchie v. Townsend, 498, 499. Noble v. Holmes, 489. Nodine v. Greenfield, 244, 245. Noe v. Gibson, 307. North American Fire Ins. Co. v. Handy, 283. North River Bank v. Rogers, 291, 397. Northrop v. Sumney, 295. Northrup v. Wheeler, 407. Northwestern Ins. Co. v. Forward, 524. Norton v. Warner, 123, 221, 241, 239. v. Whiting, 388. Nott v. Hill, 274. Noyes v. Clark, 76, 77. Nugent v. Riley, 186. Odell v. Montross, 60, 219, 220. O'Dougherty v. Felt, 55. Offutt v. Flagg. 468. Ogden v. Lathrop, 434. O'Hara v. Brophy, 271, 308, 310. Ohio & Mississippi R. R. Co. v. Kasson, 210. Olcott v. Robinson, 319. v. Tioga R.R.Co.,450, 454,455. Olmstead v. Elder, 170, 172. Omboney v. Jones, 52. Ontario Bank v. Strong, 277. Oppenheimer v. Walker, 96, 340, 384, 387. INDEX TO CASES CITED. XXIX Osborn t. Carr, 100. Otis v. Sill, 471, 479, 495, 503. v. Wood, 434, 446. Owen v. Barrow, 123. v. Cawley, 197, 198, 199. Pabodie v. King, 64. Packer v. Rochester & Syracuse R. R. Co., 15, 16, 365, 366, 368. Paget v. Perchard, 483. Paige v. Cagwin, 116. Paine v. Packard, 70, 240. Palk v. Clinton, 237. Palmer v. Guernsey, 13. Pardee v. Van Anken, 222, 223, 232. Parfitt v. "Warner, 348. Parish v. Wheeler, 447, 450. Parker v. Browning, 306. v. Parshall, 445, 448. Parkinson v. Hanbiiry, 85. Parkist v. Alexander, 100, 147. Parks v. Jackson, 32, 33, 259. Parmelee v. Dann, 101. Parmentier v. Gillespie, 62. Parshall v. Eggart, 428, 429, 478, 497. v. Lamoreaux, 214. Parson r. Welles, 231. Parsons t. Lyman, 122, 242. Patchin v. Pierce, 64, 445, 447, 448, 451. Paton v. Murray, 241. Patten v. Accessory Transit Co., 81, 303. Patterson v. Edwards, 32. v. Gillies, 501. v. Perry, 489. Pattison v. Hull, 101. v. Powers, 291, 394. Patty v. Pease, 92, 137, 138, 337. Payne v. Burnham, 113, 114, 116, 201. Peabody v. Roberts, 227, 243, 244, 365. Pearsall v. Kingsland, 210. Peck v. Mallams, 139. 240. Pell v. Ulmar, 79, 170, 172, 230, 397. Pendleton v. Fay, 104. Penny t. Corwhite, 36. People v. Beebe, 286. v. Berner, 71. v. Colborne, 422. v. Keyser, 120, 121, 142, 239. v. New York Central Rail- road Co., 352. y. Prescott, 408, 426. . People v. Sigel, 121. V. TJlsterCommon Pleas, 422. People ex rel. Day v. Bergen, 321. People exrel. Grissler v. Stuyvesant, 46. People ex rel. Tremont Bank v. Con- nolly, 259. Perine v. Dunn, 237, 238, 391, 392. Perkins v. Squier, 72, 73. Perrine v. Striker, 217. Peterson v. Chemical Bank, 122,242. v. Clark, 13, 55. Pettibone v. Griswold, 63. Petty v. Styward, 121. Peyser v. McCormack, 271. Phelps v. Johnson, 134. Philips v. Walker, 326. Phillip v. Gallant, 115. Phillips v. Winston, 50. Phyfe v. Riley, 79, 230, 397. v. Wardell, 29, 45. Pickett v. Barron, 119, 160. Pierce v. Emery, 50. Pierson v. Hooker, 120. Piser v. Stearns, 435, 436, 439. Pitney v. Leonard, 152, 259. Piatt v. Gilchrist, 294. v. Piatt, 342. Plumb v. Cattaraugus Ins. Co., 114. Poillon v. Martin, 110. Polls v. Lord Clinton, 448. Pond v. Clark, 07. v. Hudson River R.R. Co., 496. Porter v. Lord, 264. v. Parmley, 434, 44G, 447, 459, 461, 479, 504, 513. Post v. Bank of Utica, 211, 212,217, 218, 235. v. Dart, 210, 211, 212. v. Dorr, 302. v. Leet, 322, 361. Potter v. Cromwell, 48. v. Rowland, 256, 258. Powell v. Tuttle, 172. v. Waters, 206. Power t. Lester, 15, 102, 132. Powers v. Freeman, 470, 496. v. Trenor, 279. Pratt v. Adams, 210, 213. v. Hoag, 255, 256. v. Huggins, 13, 141. v. Ramsdell, 226, 312, 313. v. Stiles, 308, 448, 453. ProctorV. Farnham, 356, 357. Prouty v. Eaton, 289. v. Price, 289. XXX INDEX TO CASES CITED. Pulver v. Richardson, 450, 454, 455. Purdy v. Doyle, 385. v. Huntington, 102, 108, 131, 159, 160, 161. Purser v. Anderson, 65. Putnam v. Ritchie, 85. Quincy v. Cheeseman, 302. Quinn v. Brittain, 81, 83, 221, 235, 303. Quirk v. Rodman, 22, 439. Randall v. Cook, 477. v. Raab, 79. Rankin v. Reformed Protestant Dutch Church, 268. Rapelye v. Anderson, 214, 283. v. Prince, 86. 225, 276. v. Rapelye, 90. Rathbone v. Clark, 281, 338, 340, 409. v. Hooney, 243, 246, 288. v. Warren, 68. Rawson's Adm'x v. Copeland, 186. Rawson v. Lampman, 98, 244, 291. Ray v. Adams, 25, 26. v. Birdseve, 511. v. Oliver," 319. Raynor v. Selmes, 236, 352, 363. v. Wilson, 157. Reading v "Weston, 212. Real Estate Trust Co. v. Keeeh,209. v. Seagreave, 115. Redman v. Hendricks, 508. Reed v. Gannon, 152, 480. v. Larson, 297, 299. v. Marble, 118, 160, 243, 372. Reese v. Scully, 103. Reeves v. Cappen, 431. v. Kimball, 104. Reformed Dutch Church in Sauger- ties, Matter of, 40, 41. Remsen v. Beekman, 70, 74, 240. v. Hay, 220. Renaud v. Conselyea, 240. Renwick v. Macomb, 376. Requa v. Rea, 341, 343, 350, 656, 357, 362. Rexford v. Widger, 211, 212, 218. Reynolds v. Lounsbury, 114. v. Shuler, 442, 462. v. Ward, 64. Rhoades v. Canfleld, 147. Rhodes v. Dutcher, 357. v. Evans, 250. Ricard v. Sanderson, 190, 194. Rice v. Cobb, 522. v. Dewey, 46, 134, 154, 459. v. Harbeson, 91, 96. v. Mather, 206. Rich v. Doane, 22. v. Milk, 443, 451. Richard v. Holmes, 455. Richards v. Northwest Protestant Church, 41. v. Warring, 104. Rickerson v. Raeder, 460. Rinchey v. Stryker, 489, 490, 492. Ring v. Franklin, 522. v. Steele, 158. Ritter v. Phillips, 299. River Clyde Trustees v. Duncan, 123. Roach v. Cosine, 13. ' Robbins v. Wells, 243. Roberts v. Jackson, 159. v. Wiggin, 292. Robinson v. Baker, 464. v. Cropsey, 14, 19, 20, 22, 23. v. Meigs, 343. v. Preswick, 46, 47. v. Renwick, 53. v. Robinson, 90. v. Ryan, 86, 225, 226, 236, 276, 365,391,405,414, 416, 562. v. Wilcox, 445, 448. v. Williams, 33, 57, 59, 61, 63. Rockwell v. Hobby, 25, 26, 33. Rogers v. De Forest, 38. v. Dill, 39. v. Eagle Fire Ins. Co., 186. v. Hosack's Ex'rs, 183. v. McLean, 358. v. Traders' Ins. Co., 67, 176. Roosevelt v. Bull's Head Bank, 125. v. Carpenter, 91, 393. v. Ellithorp, 268. v. N. Y. & Harlem R. R. Co., 125. Root v. Wheeler, 383, 407, 416. Rosa v. Butterfleld, 215. Rosevelt v. Bank of Niagara, 104, 221, 223. Roth v. Wells, 511. Rowan v. Sharpe's Rifle M'f 'g Co., 61. Rubens v. Prindle, 72, 76, 78, 92,186. Ruckman v. Astor, 231. Rugg v. Barnes, 461. INDEX TO CASES CITED. XXXl Runyan v. Mersereau, 15, 120. Rushmore v. Gracie, 249. Russell v. Allen, 93. v. Austin, 205. v. Butterfield, 444. v. Duflon, 4-22. v. Kinney, 298. - v. Pistor," 129, 135,187,188. v. Winne, 483, 486, 487. Rust v. Morse, 458. Ryan v. Dox, 12, 14, 355. Sahler v. Signer, 11, 79. Sailly v. Elmore, 71. St. Andrew's Church v. Tompkins, 63, 100. St. John v. Bumpstead, 79, 400. v. Palmer, 117. v. Spaulding, 160. Salisbury v. Phillips, 455. Saltus v."Everett, 436, 439, 464. Sandford v. Travers, 293, 294. Sands v. Church, 212. Sanger v. Eastwood, 505. Sargeant v. Metcalf, 439. Savage v. Long Island Ins. Co., 98, 291. Saxton v. Hitchcock, 19, 23. Sayles v. Smith, 410. Scarborough v. Stinson, 83. Scarfe v. Morgan, 463. Schafer v. Reilly, 104, 108, 113, 116. Schermerhorn v. Talman, 218, 235, 236. Schmidt v. Hoyt, 99. Schroeppel v. Corning, 210. v. Shaw, 68, 69. Schryver v. Teller, 92, 337. Schutt v. Large, 158. Schwinger v. Hickok, 283. , Scott t. Brest, 83. v. Delahunt, 463, 465, 523. v. Gallagher, 153. Scranton v. Clark, '117. Sea Ins. Co. v. Stebbins, 81, 301, 303, 304, 306, 307. Seaman v. Hicks, 361, 362. Seaver v. Durant, 231. Second Baptist Society in Canaan, Matter of, 41. Security Fire Ins. Co. v. Martin, 276, 277. Sedgwick v. Fish, 323. v. Hollenback, 15. Selden v. Mann, 53, 54. Severance v. Griffith, 13, 102. Seymour v. Canandaigua R. R. Co., 27. Shapley v. Abbott, 114. Shaw v. Hoadley, 247. v. McNish, 245. Sheldon v. Edwards, 47, 130. v. Ferris, 91, 129. v. Wright. 319. Shepard v. Little, 57. v. Mayor &c. of New York, 44. , v. Philbrick, 51. v. Shepard, 63. Sheperd v. Murdock, 302. Sheridan v. Andrews, 262. Sherill v. Crosby, 169. Sherman v. Dodge, 171. v. Willett, 51, 52, 411, 420. Sherwood v. Hooker, 237, 238. v. Mayor &c. of New York, 44. v. Reade, 170, 172. Shirley v. Sugar Refinery, 31, 33, 34. Shirras v. Craig, 58. Shotwell v. Smith, 301, 302. Shuart v. Taylor, 442, 462, 472, 510. Shufelt v. Shufelt, 210, 291, 397. Shultz v. Pulver, 121. Sigel v. Johns, 201. Silsbee v. Smith, 235. Silver Lake Bank v. North, 86, 222, 225, 276. Simers v. Saltus, 293, 367. Simerson v. Branch Bank, 480. Simonson v. Blake, 270, 283. Simson v. Satterlee, 239. Sitcr v. McClanachan, 100. Skeel v. Spraker, 92, 130, 131, 337. Skinner v. Ovttinger, 489. Slee v. Manhattan Co., 14, 45, 87, 123, 228, 237,238,251, 312,370,371, 399, 400, 402, 420, 433. Sleight v. Reed, 382. Slocum v. Glass, 347. Slosson v. Duff, 385. Smart v. Bement, 339. Smith v. Acker, 477, 495, 509. v. American Life Ins. Co., 342. v. Beattie, 428, 433. v. Col. Ins. Co., 181. v. Gage, 259. v. Gardner, 365. v. Heermance, 348. y. Jackson, 382. v. Jencfcs, 52, 472. v. Lynes, 440. XXX11 INDEX TO CASES CITED. Smith v. Post, 477, 480, 488, 503. v. Smith, 314, 460. v. Starr, 101. v. Townsend, 69, 139, 198. v. Webb, 116, 242. Snead v. Watkins, 463. Snedeker v. Warring, 46, 49. Snyder v. Stafford, 92, 96, 135, 320, 339, 384. Soule v. Ludlow, 96, 410, 411, 414. v. Union Bank, 180. South Baptist Society of Albany v. Clapp, 41. Southern L. & T. Co. v. Packer, 215. Southworth v. Isham, 474. v. Soofield, 131. . v. Van Pelt, 55, 56. Souverbye v. Arden, 37. Spader v. Lwler, 62. Sparks v. State Bank, 147- Spaulding v. Hallenbeck, 186. Spear v. Cutter, 54. Spears v. Hartley, 141. Speiglemeyer v. Crawford, 223. Spencer v. Ayrault, 88, 130. v. Harford, 393. Spies v. Boyd, 482. Spring v. Sandford, 359. Springfield F. & M. Ins. Co. v. Allen, 174, 179. Spyer v. Fisher, 264. Stackpole v. Robbins, 134, 286, 414. Stafford v. Roof, 466. v. Van Rensselaer, 147. StaM v. Charles, 350. Stanton v. Kline, 400, 405. State v. Plaisted, 466. Stearns v. Marsh, 432. v. Welsh, 324. Steele v. Sturges, 306. Steelyards v. Singer, 439. Stephens v. Casbacker, 195, 214. Sterling v. Rogers, 134, 455. Stern v. O'Connell, 255, 257. Stevens v. Bank of Central of New York, 382. v. Buffalo & N. T. City R. R. Co., 50, 504, 505. v. Cooper, 136, 138. T. Veriane, 313. Stevenson v. Fayerweather, 260. Stewart v. Beale, 493, 503, 505, 511. v. Hutchins, 397. v. Hutchinson, 368. v. Slater, 508.' Stilwell v. Van Epps, 270. Stockham v. Allard, 500. Stoddard v. Denison,,428, 434, 446, 448, 449, 450, 455. v. Hart, 25, 60. v. Rotton, 156. v. Whiting, 11,12, 20, 220. Stone v. Scripture, 123, 242. v. Seymour, 88. Stoney v. American Life Ins. Co., 210. Stoughton v. Pasco, 63. Stow v. Tift, 44, 98, 203, 291. Strong v. Dallner, 369. v. Stewart, 14. v. Taylor, 436, 439, 441. Stryker v. Storm, 351. Sturtevant v. Sturtevant, 12. Stuyvesant v. Hall, 75, 92, 120, 121, 135,136,137,138,142, 157, 259, 337. v. Hone, 137, 259. Suffern v. Johnson, 329, 335. Sutherland v. Rose, 143, 232, 238. Suydam v. Bartle, 291, 395, 396. Swaine v. Perine, 204, 205. Swarthout v. Curtis, 142. Sweet v. Lawrence, 517. v. Van Wyck, 110. Sweetman v. Prince, 117. Sweezey v. Thayer, 385. Swezey v. Willis, 385. Swift v. Hart, 498, 500. Syracuse Bank v. Tallman, 301, 302. Tabele v. Tabele, 203, 204, 205, 388. Tallmadge v. Wallis, 293. Tallman v. Bressler, 45. v. Farley, 98. Talmadge v. Wilgers, 137. Talman v. Hawxhurst, 507. . v. Smith, 445, 446, 448, 451, 480. Tasker v. Bartlett, 78. Tate v. Jordan, 257. Taylor v. Page, 103. v. Root, 308, 309. v. Wendell, 90. Tefft v. Munson, 17, 158. Ten Broeck v. Lansing, 369. Ten Eyck v. Craig, 15, 85, 86, 87. Ten Hoven v. Kerns, 62. Thayer v. Mann, 141. v. Willit, 489. Theriot v. Prince, 489, 502, 505. Thomas v. Brown, 396. v. Dickinson, 185. INDEX TO CASES CITED. * xxxm Thomas v. Dunning, 244. Thomas v. Kelsey, 383. Thomas' Ex'rs v. Van Kaff 's Ex'rs, 176. Thompson v. Blanchard, 428, 477. v. Chandler, 100. v. Diinond, 357. v. Mount, 349. v. Van Vechten, 210, 466, 489, 490, 491, 497, 505, 519. Thomson v. "Wilcox, 149, 153. Thorp v. Keokuk Coal Co., 186, 191, 192 Thurston v. Marsh, 78, 226, 312. Tibbs v. Morris, 12, 14. Tice v. Annin, 92, 135, 240, 393. Tiernan v. Thurman, 34. v. Wilson, 334. Tiffany v. Warren, 463. Tifft v. Barton, 514. v. Buell, 99. v. Horton, 47. Tillou v. Kingston Mutual Ins. Co., 175, 177. Titus v. Neilson, 202, 203, 204. T. Velie, 310. Toll v. Hiller, 286, 351. Tompkins v. Seeley, 223. v. Tysen, 432. Toplis v. Baker, 141. Torrey v. Bank of Orleans, 93, 338, 354. Totten v. Stuyvesant, 262. Tower v. White, 378. Townsend v. Empire Stone Dressing Co., 64. Trader's Ins. Co. v. Robert, 177. Trecothick v. Austin, 122. Trident, The, 525. Trimmv. Marsh,* 15, 16, 85. Tripp v. Cook, 343, 349, 351. v. Vincent, 72, 92, 186. Trotter v. Hughes, 186, 188, 192. Troup v. Haight, 322. Trucks v. Lindsey, 23. Trull v. Skinner, 220. Tiuscott v. King,57,58, 62,63, 65,157. Trustees of Union College v. Wheeler, 109, 112, 118, 126, 136, 138, 153, 159. Tucker v. Boffington, 522. Turner, In re, 39. Turner v. Peck, 30. Tuthill v. Tracy, 418, 419. Tuttle v. Jackson, 151, 152. C Tyler v. Strang, 428, 502, 503. v. Taylor, 445. Umfreville v. Keeler, 12. Underhill v. Reinor, 510. Union Bank v. Bell, 244. v. Emerson, 46. Union Dime Savings Institution v. Osley, 381. Union Ins. Co. v. Van Rensselaer, 378. United States v. Hooe, 57. U. S. Bank v. Chapin, 88. Vail v. Foster, 31. Valentine v. Van "Wagner, 76. Van Antwerp v. Newman, 459, 513. Van Bergen v. Demarest, 413. Van Beuren v. Van Gaasback, 88. Van Buren v. Olmstead, 14, 81, 238, 312. Van Buskirk v. Puriuton, 465. Vandercook v. Cohoes Savings Insti- tution, 223, 339, 342. Vanderheyden v. Gary, 256. Vanderkemp v. Shelton, 92, 119, 159, 160, 226, 227, 247, 281, 365, 367. 416. Vanderpoel v. Van Allen, 47, 48. Van Dusen v. Worrell, 14. Van Duyne v. Thayre, 17, 79, 203 t 230, 397. Van Epps v. Van Epps, 355. Van Etten v. Hurst, 490. Van Hassell v. Borden. 497. Van Heusen v. Radcliff, 470,473,487, - 489,506. Van Hook v. Throckmorton, 372. Van Hoozer v. Cory, 472. Van Home v. Crain, 98, 291. Van Keuren v. Corkins, 123, 124. Van Nest v. Latson, 247. Van Pelt v. McGraw, 47, 55. Van Rensselaer v. Clark, 96, 158. v. Stafford, 107, 147. Van Sickle v. Palmer, 114. Van Slyke v. Sheldon, 400. Van Valen v. Schermerhorn, 193. Van Wagenen v. La Farge, 286.' Varian v. Stevens, 264. Varick v. Briggs, 106. Vartie v. Underwood, 204, 243, 387. Vechte v. Brownell, 413. Veeder v. Fonda, 319, 361, 362, 363. Vermilyea v. Beattie, 242. Vernum v. Babcock, 220. XXXIV • INDEX TO CASES CITED. Vickery v. Dickson, 206, 208. Vilas v. Jones, 68, 217. Virgin, The, 525. Voorhees v. McGinnis, 46, 47, 48. Vroom v. Ditmas, 226, 227, 237, 312, 414, 416. v. Van Home, 121, 122, 242. Vrooman v. Turner, 192, 199. Wade v. Rusher, 491. Wade's Case, 7. Wainright v. Crawford, 523. Wait v. Green, 439. Wake v. Hart, 405. Wakeman v. Price, 353. Walcott v. Schenck, 95, 334. Waldron v. Waldron, 90. Walker v. Snediker, 57, 60, 63, 467, 478. Wall St. Fire Ins. Co. v. Loud, 304. Walsh v. Rutgers Fire Ins. Co., 81, 365. Waltermire v. Westover, 140. Walthall, Ex'r, v. Rines, 85. Walton v. Cronly, 45. Walworth v. Farmers' Loan & Trust Co., 335. Wandle v. Turney, 234. Ward v. Dewey, 365. v. Van Bokkelen, 250. Waring v. Loder, 174, 177, 180. v. Smyth, 16. v. Waring, 258. Warner v. Blakeman, 131, 403, 414. v. Gouverneur, 297, 301. v. Van Alstyne, 29, 30, 33, 203. v. Winslow, 156. Warren v. Boynton, 92, 338. v. Finn, 81. Waters v. Grower, 454. v. Stewart, 15. Watson v. Church, 266. v. Hunter, 54. v. McLaren, 113. v. Spence, 79, 365, 397. Wattson v. Campbell, 468. Waydell v. Luer, 66, 133. Wayn& v. Sherwood, 428, 429. Weathersley v. Weathersley, 23. Weaver v. Barden, 155. v. Toogood, 92. Weber v. Fowler, 256. v. Sampson, 522. Webster v. Van Steenbergh, 155. Weed v. Stevenson, 12. Welland Canal v. Hathaway, 114. Wells v. Chapman, 212. v. Wells, 402, 406, 411. Wendell v. Wendell, 811. West v. Crary, 447. Westcott v. Gunn, 66, 488, 497, 508. Westerlo v. De Witt, 101. Western Bank v. Sherwood, 77. Western Ins. Co. v. Eagle Fire Ins. ' Co., 247, 281. v. Village of Buf- falo, 190. Western Reserve Bank v. Potter, 247, 250. Westervelt v. Ackley, 200. Westfall v. Jones, 104. Westgate v. Handlin, 410. Wetmore v. Roberts, 85, 407, 416. Whalin v. White, 369. Wheeler v. Morris, 243. v. Newbould, 434. v. Scully, 265. v. Van Kuren, 376. v. Wheeler, 121. Wheelwright v. Depeyster, 129, 136, 137. Whitbeck v. Rowe, 335. White v. Carpenter, 26. v. Cole, 505, 524. v. Coulter, 258, 260, 266, 344, 351. v. Evans, 365. v. Knapp, 130. v. Lester, 170. v. McNett, 201. v. Moore, 156. v. Patten, 158. v. Turner, 206. v. Williams, 29, 31. White's Bank v. Smith, 519. Whitlock v. Waltham, 123. Whitman v. Conner, 467. Whitney v. McKinney, 234, 250. WMttick v. Kane, 14, 156, 221. Whittle v. Skinner, 429. Wilbor v. Danolds, 872, 373. Wilcox v. Howell, 115. Wiles v. Clapp, 497, 506, 508. v. Peck, 197. Wiley v. Angel, 351. Willard v. Rice, 473. Willets v. Van Alst, 356. William and Mary College v. Powell. 74. Williams v. Allen, 209. v. Allsup, 463, 523. v. Ayrault, 208. INDEX TO CASES CITED. XXXV Williams v. Birbeck, 147, 159. , v. Buck, 210. v. Fitzhugh, 209, 217. v. Houghtaling, 88. v. Robinson, 303. v. Storrs, 122, 242. v. Thorn, 102, 156. v. Tilt, 210. v. Townsend, 85, 86, 225. v. Walker, 123. v. Woodard, 37. Williamson v. Brown, 63, 151, 152. V. Champlin,291,393,396. v. Dale, 348. v. Field, 244, 359. Willis v. Twambly, 291. Williston v. Jones, 483, 488. Willner v. Morrell, 442. Wilsey v. Dennis, 193. Wilson v. Harvey, 208. v. Little, 431. v. Maltby, 53, 55. V.Troup, 37, 101,400,402. v. Wilson, 35. Winebrener v. Johnson, 226, 244. Wing v. Cooper, 23. Winship v. Jewett, 279. Winslow v. Clark, 226, 233, 234,244, 391 v. McCall, 79, 119, 160, 383, 407. v.Merchants' Ins.Co., 46,470. v. Tarbox, 522. Winsted Bank y. Webb, 208, 209. Wintermute v. Light, 472. Wiseman v. Westland, 157. Wisser v. O'Brien, 509. Wiswall v. McG-owan, 259. Withers v. Morrell, 294. Withers v. Powers, 294. Wolcott v. Schenck, 335, 345. v. Weaver, 276. Wood v. Chapin, 150. v. Dudley, 430. v. Jackson, 415. v. Lester, 53, 433. v. Lowry, 484, 495. v. Mather, 39. v. Moorhouse, 244, 245, 319. v. Surr, 392. v. Terry, 170, 172, 173. Woodhull v. Osborne, 343, 344. Woodruff v. Bush, 347. Woods v. Monell, 333. v. Spaulding, 337. Woolley v. Constant, 36. Wordier v. Bush, 85. Worrall v. Smith, 483. Wright v. Holbrook, 29, 90, 91. Wyatt v. Benson, 41. Wyckoff v. Remsen, 99. Wyman v. Smead, 101. Wynkoop v. Cowing, 220. Yale v. Dederer, 196, 197, 198. Yates v. Joyce, 55. v. Olmsted, 487. v. Woodruff, 316. Yelverton v. Sheldon, 234. Yenni v. McNamee, 479. York v. Allen, 293. Young v. Bloomer, 353. v. Hunter, 127. Young Mechanic, In re The, 523. Youngs v. Wilson, 59, 63, 149. Zabriskie v. Smith, 243. Zeiter v. Bowman, 253, 260, 304. 2 THE LAW OF MORTGAGES. As the Roman Empire absorbed all other kingdoms and nationalities, so the Eoman lawyers seized upon the wisdom and learning of the conquered provinces, and whether, as some suppose, they borrowed the idea of mortgage from the Jews, or whether the suggestion came from some other source, they certainly developed a system, the wisdom and equity of which rendered it a potent force in framing the codes of later times, long after the valor of the Roman legions had become mere matter of history. Mortgages undter the Gvoil Law. In the Roman law there were two kinds of transfers as se- curities for debts : the pignus and the hypotheca. When the pledge passed into the possession of the creditor, the transac- tion was termed a pignus, while, if the debtor retained posses- sion, it was known as an hypotheca. 1 The distinction between real and personal estate, which prevailed in the common law, was not recognized, but, just as in the common law, the term pledge, though frequently applied to both real and personal property, is more commonly used in reference to a chattel, so the term pignus came to signify in strictness a pledge of a movable, and the word hypotheca of an immovable piece of property. 2 No title to the thing pledged passed, and, although the debt was not paid at the stipulated time, it did not amount to a forfeiture of the right of property of the debtor therein. The creditor was simply clothed with the authority to sell the -pledge and reimburse himself for his debt, interest and ex- penses, and the residue of the proceeds of the sale then be- longed to the debtor. Where it was practicable, notice of the sale was always required to be given to the debtor ; provision are many ; therefore we take up corn for them, that we may eat and live. Some also there were that said, We have mortgaged oar .lands, vineyards and houses, that we might buy corn, because of the dearth. There were also that said, We have borrowed money for the king's tribute, and that upon our lands and vine- yards. * * * And I was very angry when I heard their cry and these words. Then I consulted with myself, and I rebuked the nobles and the rulers, and said unto them, Te exact usury, every one of his brother. And I set a great assembly against them." 1 Story's Eq. Jur. § 1005. ' Story's Eq. Jur. § 1006. HISTORY OF MORTGAGES AND THEIR NATURE. 3 ■was made for sales under judicial sanction, and, when the mort- gaged property could not conveniently be sold, a decree in the nature of a foreclosure could be obtained, by which the abso- lute property would be vested in the creditor. 1 The authority to make the sale was held to arise not from the agreement of the parties, but from the general nature of the contract, and an order of sale would be granted upon application of the cred- itor, even in a case where a special bargain had been made that there should be no sale. On the other hand, a stipulation pro- viding that, if the debt were not paid at the day, the property should belong to the creditor in lieu of the debt, was held void, as being inhuman and unjust. 3 Mortgages among the Anglo-Saxons and the Normans. It is a matter of doubt as to whether mortgages were known to the Anglo-Saxons. We are in a great degree ignorant of the nature of their law of landed property. The most pro- found writers are at variance, the one side asserting the law of ' feuds and tenures to have been acknowledged, the other that it was not. But it seems to be admitted that a right of free alienation of property existed, which implies the right of mort- gage or conditional sale ; and whether the feudal law was rec- ognized or not, it is manifest that it was not admitted with the burdensome restrictions afterwards introduced by the Norman feudists. 8 After the Norman conquest, mortgages must for a time have become uncommon. The titles of such portions of the king- dom of England as were not portioned out by the Conqueror to his retainers and friends were, soon after that time, surren- dered to him, and were regranted on the feudal terms of homage and fealty, and from thenceforth the feudal law pre- vailed. It was the policy of that system of law to regard the land as the common source of wealth and power; it was deemed to be a valuable right of the lord that his tenants should be his friends, and of the tenants that their lord and his heirs, and not a stranger, should continue to rule over them, 1 Story's Eq. Jur. § 1008. J Story's Eq'. Jur. § 1009. s Coote on Mortgages, 4. 4 THE LAW OF MORTGAGES. and the restraints and burdens upon alienation were therefore multiplied, until mortgages of land must have been nearly- extinguished. 1 Another discouragement to the mortgaging of land was. found in the fact that the loaning of money at interest was exceedingly unpopular ; and while it was lawful for a Jew to lend to a Christian — in analogy to the Jewish law which de- clared it to be an offense for a Jew to exact usury of a Jew — the taking of usury from a Christian by a Christian was thought to be detestable, and it was punished by the forfeiture of the lands and chattels of the creditor, if he died possessed of the pledge. 3 The passage of the statute of Quia emptores terrarum, in the eighteenth year of the reign of Edward I, simplified the tenure and gave 'greater freedom to alienations of land, and the restrictions which impeded the conveying of landed property- being removed, mortgages became general. 3 Mortgages at Common Law. The common law recognized two kinds of landed securities, the vivum vadium and the mortuum vadium. They were both determinable or base fees, with a right of reverter in the feoffor on the payment of a given sum ; but they 'differed in this, that while in the case of a vivum vadium the right of the feoffor to redeem continually remained, in the case of a mw- tuum vadium the title to the estate and all interest in it became vested in the feoffee, if the condition were not punc- tually performed. In the first case, the feoffee took possession, and the rents and profits of the land went to diminish the debt, which the feoffor was privileged at any time to pay and resume his possession ; in the second, the feoffee did not ordinarily go into possession, but if the condition were not performed, the estate was thereafter forfeited to the feoffee. 4 It is not prob- able that the vivum vadium ever passed into general use as a 1 Coote on Mortgages, 5. ' Coote on Mortgages, 6. 3 Coote on Mortgages, 6. 1 2 Bl. Com. 151;- Coote on Mortgages, 10, 11 ; 2 Wash. E. P. 39 (3d ed.) HISTORY OF MORTGAGES AND THEIR NATURE. 5 security, and there is no trace of the period when it first fell into disuse. 1 A form of security bearing a resemblance to the vwum -vadium,, and known as a Welsh mortgage, is still recognized in England, though it has almost become obsolete, under which the mortgagee enters and occupies, taking the rents as an equivalent for the interest of the money loaned. The mort- gagee cannot enforce the payment of the debt or the redemp- tion of the estate, neither can he foreclose it ; and, on the other hand, no matter how large the rents may be, they do not operate to reduce the amount of the claims against the property. 8 The mortuum vadium or mortgage is, however, the stem from which the modern mortgage has sprung. It is thus described by Littleton : s " Item : if a feoffment be made upon such condition that if the feoffor pay to the feoffee at a certain ■day, &c, forty pounds of money, that then the feoffor may re- -enter, &c. In this case the feoffor is called tenant in mortgage, -which is as much as to say in French, come mortgage, and in latin, mortuum vadium. And it seemeth that the cause why it is called mortgage is, for that it is doubtful whether the feoffor will pay at the day limited, such sum or not ; and if he doth not pay, then the land which is put in pledge upon con- dition for the payment of the money is taken from him forever, and so dead to him upon condition, &c. ; and if he doth pay the money, then the pledge is dead as to the tenant," &c. The origin of the name has formed a subject for comment and dis- pute among writers. Blackstone and some others 4 follow Littleton ; but Mr. Coote 5 and Mr. "Williams 6 prefer an exposi- tion given by Granville, and claim that an earlier form of the same security existed, by which the rents were received by the creditor in lieu of interest, and the land thus becoming for the time being dead to the feoffor,, the security was not inaptly termed a dead pledge. 1 Coote on Mortgages, 10. * Coote on Mortgages, 9 ; Fisher on Mortgages, 3 ; 2 "Wash. R. P. 39 (3d ed.) 3 Sec. 332. 4 2 Bl. Com. 15V ; 2 Wash. R. P. 39 (3d ed.) * Coote on Mortgages, 10. " Williams R. P. 352. 6 THE LAW OF MORTGAGES. The mortgage described by Littleton was 6trictly an estate upon condition. By force of it the title instantly vested in the feoffee, subject to the condition; if the condition were per- formed, the feoffor entered and was in possession of his old estate ; but if the condition were not faithfully complied with, the land was forever lost to the feoffor. Where the value of the estate conveyed was large in proportion to the debt, the harshness of such an agreement was manifest, but the common, law knew of no better way to treat debtors than to make them live up to their bargains. It relented to the extent of favoring the performance of the condition, and of restoring the debtor to his estate if the condition had been kept in its spirit, as nearly as it could be ; 1 but otherwise the bargain was enforced according to its letter. Men who took usury and who obtained possession of- estates by the oppressive enforcement of the con- ditions of mortgages, were reviled and abused, but the sturdy spirit of the common law refused to interfere between the unfortunate debtor and the consequences of his own act. The Equity of Redemption. Happily a jurisdiction was arising under which the harsh- ness of the common law might be softened without an actual interference with its principles, and a system might be estab- lished at once consistent with the security of the creditor, and with a due. regard for the interests of the debtor. 2 The court of chancery was presided over by men who had studied the en- lightened code of the Roman law, and as that court became powerful, the successive chancellors sought, by the introduction of new principles, to moderate the severity with which the com- mon law enforced the breach of the condition. They did not, indeed, make any attempt to alter the legal effect of the for- feiture at common law ; they could not, as they might have wished, in conformity with the principles of the civil law, de- clare that the force of the conveyance should, notwithstanding forfeiture committed, cease at any time before sentence of fore- closure, on payment of the -debt to secure which it was made ; but leaving the forfeiture to its legal consequences, they oper- 1 Coote on Mortgages, 13. « Coote on Mortgages, 17. HISTORY OF MORTGAGES AND THEIR NATURE. 7 ated on the conscience of the mortgagee, and acting in per* sonam and not in rem, they declared it unreasonable that he should retain for his own benefit what was " intended as a mere pledge." They adjudged that the breach of the condition was in the nature of a penalty, which ought' to be relieved against, and that the mortgagor had an equity to redeem on payment of principal, interest and costs, notwithstanding the forfeiture at law. 1 There is no record of the time when this equity was first granted.' In the cases of Wade 2 and Goodall, s which were de- cided towards the end of the reign of Queen Elizabeth, the parties do not seem to have entertained the idea of any remedy existing for the mortgagor's relief, if the forfeiture was estab- lished at law, although Tothill mentions a case in the thirty- seventh year of Elizabeth's reign, 4 in which the equity was de- creed, and it must soon after this time have been generally rec- ognized, for there is a case decided in the first year of Charles the First, 5 in which the doctrine seems fully admitted. In the intermediate reign of King James the First, the courts of equity became established in power, and the same period may be rea- sonably assigned as that in which the doctrine of equity of re- demption was fully recognized. 6 No sooner, however, was this equitable principle established than the cupidity of creditors induced them to attempt its eva- sion, and it was a bold but necessary decision of equity that the debtor could not, even by the most solemn engagements entered into at the time of the loan, preclude himself from his right to redeem. It required all the firmness and wisdom of the emi- nent judges who successively presided in the courts of equity to prevent this equitable jurisdiction being nullified by the artifice of the parties. But those courts, looking always at the intent and not at the form of things, disregarded all the defenses by which the creditor surrounded himself, and laid it down as a plain and undeviating rule that it was inequitable that a creditor 'Coote on Mortgages, 19. 2 5 Coke, 115. s 5 Coke, 96. 4 Langford v. Barnard, Tothill, 134. * Emanuel College v. Evans, 1 Rep. in Chancery, 10; see also How v. Vi- gures, Id. 32. . " Coote on Mortgages, 20. 8 THE LAW OF MORTGAGES. should obtain a collateral or additional advantage through the necessities of his debtor, beyond the payment of principal, in- terest and costs. They established as principles not to be de- parted from, that " once a mortgage, always a mortgage ; " that an estate could not at one time be a mortgage and at another time cease to be so, by one and the same deed ; that a mortgage could no more be irredeemable than a distress irrepleviable ; that the law will control even an express agreement of the parties, and, by the same reason, equity will let a man loose from his agreement, and even against his agreement admit him to redeem a mortgage ; and that whatever clause or covenant there may be in a conveyance, yet if, upon the whole, it ap- pears to have been the intention of the parties that such con- veyance shall only be a mortgage, or pass a redeemable estate, a court of equity will always construe it so. 1 Rights of Mortgagor and Mortgagee at Law and in Equity. Against the introduction of the novel theory of an equity of redemption, the judges of the courts of common law strenuous- ly opposed themselves ; and, though ultimately defeated by the increasing power of the court of chancery, they nevertheless, in their own courts, still adhered to the rigid doctrine of forfeit- ure. The rights of the mortgagor and the mortgagee were, • therefore, very different in the courts' of law from what they were in the courts of equity. At law, the mortgagee was treated as being the legal owner, his estate was devisable and descended to his heirs, and he might, after condition broken, oust the mortgagor by an action of ejectment. In equity, the rights of the mortgagee descended to his personal representatives, and the mortgagor was treated as the real owner of the land. Even after the courts of law had recognized the title of the mortgagee as absolute, and had put him into possession, the courts of equity enforced what was termed the mortgagor's right in equity of redemption. These contradictory and conflicting rulings gave rise to some confusion, more especially while the courts of common law con- 1 Coote on Mortgages, 22; Lawrence v. The Farmers' Loan and Trust Co. 13 N. Y. (3 Kern.) 209 ; Henry v. Davis, 1 Johns. Ch. 42. HISTORY OF MORTGAGES AND THEIR NATURE. 9 tinued to be presided over by men whose early training had led them to regard the interference of the courts of equity as an offensive innovation ; but, in the course of time, the rules of equity so commended themselves to the sense of justice of all men, and the power of the chancellors was so vigorously wield- ed, that the right of a mortgagor, after forfeiture, to redeem by application to equity, was recognized even in the courts of law as a well defined estate, and was known as an equity of redemp- tion. The mortgagee was, indeed, treated in some respects as the legal owner, and could maintain ejectment against the mortgagor, and had other legal remedies as such, but all these legal rights were held by him subject to the equity of redemp- tion of the mortgagor until, by a decree of the court of chan- cery, such equity of redemption had been foreclosed. Inas- much as the legal rights of the mortgagee could only be used to enforce the payment of the debt which the mortgage was made to secure, the mortgagee could not be said by anything more than the shallowest kind of a fiction, to be the owner of the es- tate, and the judges of the courts of law came, in the course of time, to realize the absurdity of such a proposition. The case of Martin v. Mowlin (2 Burr. 978) decided by the English King's Bench in 1760, illustrates how reasonable a doc- trine then prevailed in the courts of law. It was there held that whatever words in a will would carry the money due on a mortgage, would carry the interest in the land. Lord Mans- field said : " A mortgage is a charge upon the land, and what- ever would give the money would carry the estate in the land along with it. The estate in the land is the same thing as the money due upon it. It will be liable to debts, it will go to the executor, it will pass by a will not made and executed with the solemnities required by the statute of frauds. The assignment of the debt or forgiving it will draw the land after it as a con- sequence ; nay, it would do it though the debt were forgiven only by parol." So, in King v. St. Michaels (Doug. 632), it was remarked by the same judge, that " a mortgagor in possession gains a settle- ment because the mortgagee, notwithstanding the form, has but a chattel and the mortgage is only a security. It is an affront 10 THE LAW OF MORTGAGES. to common sense to say that the mortgagor is not the real owner." It will be observed that the doctrine of an equity of re- demption was originated by the courts of equity, and that it be- came part of the law of England because of its own reasonable- ness, and without the sanction of legislative enactment. 1 The case of mortgages is, indeed, as has been remarked by Chancellor Kent, " one of the most splendid instances in the history of our jurisprudence of the triumph of equitable prin- ciples over technical rules, and the homage which those prin- ciples have received by their adoption in the courts of law." 2 What. is Essential to Constitute a Mortgage: A mortgage at common law has been defined to be " an absolute pledge, to become an absolute interest, if not redeemed at a certain time," 3 and again as "a conveyance absolute in its form, but intended to secure the performance of some act, such as the payment of money and the like, by the grantor or some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance," 4 and still again as " a conveyance of lands by a debtor to his creditor, as a pledge or security for the repayment of a sum of money borrowed ; with a proviso that such convey- ance shall be void on payment of the money borrowed within or on a certain day." 6 But neither of these definitions is broad enough to include all of the contracts which at this day would be treated as mort- gages. A modern mortgage has been defined to be " a debt by specialty secured by a pledge of lands, of which the legal ownership is vested in the creditor, but of which, in equity, the 1 Blackstone says that "the inconvenience as well as the injustice of putting different constructions in different courts upon one and the same transaction obliged the parliament at length to interfere, and to direct, by the statutes 4 Darling v. Rogers, 22 Wend. 483 ; Irving v. De Kay, 9 Paige, 521 ; affi'd 5 Den. 646. " 2 R. S. 194, 195 ; Laws of 1874, c. 524 ; see also Rules 61, 68, 69, 70. WHO MAY MORTGAGE AND HOW. 39 made, and it is not a common thing to do. The reason for this may be found in the fact that to mortgage an infant's land is to run him into debt, and it does not often happen " that the in- terest of such infant requires, or will be substantially promoted by," the imposing upon him of an obligation to pay interest on borrowed money. Proceedings under this statute must strictly conform with the letter of the law, for the court has no authority outside of the enactment. 1 The infant must be seized of the estate, that is, be must hold the legal titlE, or the proceedings cannot be taken at all, 2 but it is said that courts of equity have an inher- ent jurisdiction, independent of statute, to order a sale, of the equitable estate of infants, and upon a similar reason they may also authorize the mortgaging of it. 3 Mortgages of the Zand's of Lunatics and Habitual Drunkards. Any idiot, lunatic or person of unsound mind, seized of any real estate, or entitled to any term for years in lands, may, by commitee duly appointed, apply to the Supreme Court for the sale or disposition of them. Proceedings must be taken in most respects quite similar to those on an application to dispose of the real estate of an infant ; a bond must be given by the committee, and the court will make the order whenever it shall be made to appear to be for the interest of such idiot, lunatic, person of unsound mind or habitual drunkard. 4 The statute must be strictly followed, as it is the only foundation of the ju- risdiction of the court. As in the case of the estates of 'infants, it is generally better to relieve the necessities of lunatics and drunkards by selling their property than by mortgaging it. 1 Rogers v. Dill, 6 Hill, 415 ; Baker v. Lorillard, 4 N. Y. (4 Oomst.) 257 ; On- •derdonk v. Motfc, 34 5T. Y. 106. 2 Baker v. Lorillard, 4 N. Y. (4 Oomst.) 257 ; Wood v. Mather, 38 Barb. 473. 3 Wood v. Mather, 38 Barb. 473; In re Turner, 10 Barb. 552. 4 2 E. S. 53, § 11 ; Laws of 1864, c. 417, § 5; Laws of 1869, c. 627; Laws of 1874, c. 446, title 2, § 9. 40 THE LAW OF MORTGAGES. Mortgages of the Lands of Religious Corporations. By the common law of England, all corporations capable of acquiring property were also capable of aliening it or charging it with the payment of debts. 1 But in the reign of Elizabeth and of her successor, several statutes were passed restraining alien- ations of church property by religious corporations, and restrict- ing the power of leasing. These statutes forming a part of the law of England at the time of the settlement of this State by colonists from England, under the charter of the Duke of York, became a part of the laws of the colony, although they were not afterward re-enacted here. 2 By Laws of 1813, c. 60, § 11 (3 Edm. St. 694), it was en- acted that it should be lawful for the chancellor of this State, upon application of any religious corporation, in case he should deem it proper, to make an order for the sale of any real estate belonging to a religious corporation, and to direct the applica- tion of the moneys arising therefrom, by the said corporation to such uses as the same corporation, with the consent and ap- probation of the chancellor, shall conceive to be most for the interest of the Society to which the real estate so sold did be- long : provided that the act should not extend to any of /the lands granted by this State for the support of the gospel. The powers formerly exercised by the chancellor are now vested in the Supreme Court. This statute was a re-enactment of a statute passed in 1806, and furnishes evidence that the legislators believed that the common law restrained religious corporations from alienating their property, and that they thought it necessary to empower the chancellor to authorize such sales to be made. 8 The statute does not grant to the courts any power to direct the sale of any of the, property of a religious corporation. The 1 Dutch Church v. Mott, 1 Paige, 11, 83 ; Matter of the Reformed Dutch Church in Saugerties, 16 Barb. 23"7. 241. 5 Canal Commissioners v. The People, 6 Wend. 423, 445; Canal Appraisers v. The People, 11 Wend. 611, 684. 3 De Ruyter v. The Trustees of St. Peter's Church, 3 Barb. Ch. 119 ; a. o. affi'd 3 N. Y. (3 Comst.) 238 ; Madison Avenue Baptist Church v. Baptist Church int Oliver Street, 46 N. Y. 181, 142. WHO MAY MORTGAGE AND HOW. 41 authority of the court is entirely negative, and it can only ratify or refuse to ratify the bargains which the corporations elect to make. 1 It was formerly thought to be necessary that the con- sent of the court should be obtained before any contract of sale had been entered into, 3 but the later decisions are to the effect that it is sufficient if such consent be obtained at any time be- fore the conveying of the property. 8 It is only where an absolute transfer of the title is contem- plated, that the consent of the court is necessary. The sale of a pew, where the purchaser acquires merely a limited usufructu- ary right, 4 or the conveyance of an easement or right of burial in the churchyard, 5 do not require to be approved by the court. So, the trustees of a religious corporation have the power to re- move their house of worship from one lot to another, or from one village to another without application to the court. 6 Where a mortgage is given to secure a debt legally con- tracted, this is not such a sale of the property as requires an order of the court to render it valid. 7 The object of the law is to prevent a misapplication of the trust funds, 8 and it is not necessary to invoke the sanction of the court, in order to im- pose a specific lien where a valid general charge previously existed. But where the mortgage is made as security for a loan of money obtained at the time of its execution, it would at least be prudent to obtain the approval of the court to the transaction. The application for permission to sell or mortgage church property can be made by the trustees having control of the tem- poral affairs of the corporation, and it is not necessary that a 1 Matter of the Reformed Dutch Church of Saugerties, 16 Barb. 237 ; Wyatt v. Benson, 23 Id. 827 ; a. o. 4 Abb. 182. a Dutch Church in Garden Street v. Mott, 7 Paige, 77. 8 Congregation Beth Elohim v. Central Presbyterian Church, 10 Abb. N. S. 484. * Freligh v. Piatt, 5 Cow. 494 ; Abernethy v. Society of the Church of the Pu- ritans, 3 Daly, 1. ' Richards v. Northwest Protestant Church, 32 Barb. 42; s. o. 20 How. 317; 11 Abb. 30. " Matter of the Second Baptist Society in Canaan, 20 How. 324. * Manning v. Moscow Presbyterian Society, 27 Barb. 62 ; Lee v. Methodist Episcopal Church of Fort Edward, 82 Barb. 116. 8 South Baptist Society of Albany v. Clapp, 18 Barb. 36. 42 THE LAW. OF MORTGAGES. • majority of the corporators should authorize the trustees to in- . itiate the proceeding. 1 It is provided by Laws of 1842, c. 215, that it shall not be lawful . for any church or religious corporation to mortgage any buryiDg ground used for the interment of human remains, for the use of which they shall have received compensation, without the previous consent in writing of three-fourths in number of the congregation or society of such church or corporation; which consent shall be proved or acknowledged, in the same manner as deeds are now required by law to be proved or ac- knowledged, and shall thereupon be recorded in the office of the register of the city, or clerk of the county in which such bury- ing ground is situated. By Laws of 1854, c. 50, it is made lawful for the Supreme Oourt of this State, upon the application of any benevolent, charitable, scientific or missionary society, incorporated by law, in case it shall deem it proper, to make an order for the mort- gaging of any real estate belonging to said corporation, and to direct the application of the moneys arising therefrom, by the said corporation, to such uses as the same corporation, with the consent and approbation of the said court, shall conceive to be most for the interest of the society to which the real estate so mortgaged belongs. Mortgages of Lands of Deceased Persons to Pay Debts. After the executors or administrators of any deceased per- son shall have made and filed an inventory according to law, if they discover the personal estate of their testator or intestate to be insufficient to pay his debts, they may, at.any time within three years after the granting of their letters testamentary or of administration, apply to the surrogate for authority to mort- gage, lease or sell so much of the real estate of their testator or intestate, as shall be necessary to pay such debts. 3 The application to the surrogate should be by petition, 'and 1 Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 46 N. T. 181. ' 2 R. S. 100, § 1. WHO MAY MORTGAGE AND HOW. 43 the method of procedure intended for the protection of the rights of the various parties in interest, is quite fully set forth in the statute. 1 The heir or devisee may sell or mortgage land at any time after the death of his ancestor or testator, but the purchaser or mortgagee takes subject to the right of the administrator to have the same sold for the payment of debts. The liability of the lands for such debts, in case of a deficiency of assets, is a statutory lien running with the land for three years. 2 But if a mortgage subject to such a lien has been foreclosed, and a surplus remains after paying the mortgage debt, such surplus is the primary fund for the payment of debts, and must be resorted to before any attack can be made on the lands in the hands of the pur- chaser, even though the administrator was not a party to the foreclosure. 3 t 1 See 2 K. S. 100, § 1 ; Laws of 1837, c. 460, §§ 40 et seq. ; Laws of 1843, c. 172 ; Laws of 1847, c. 298 ; Laws of 1850, c. 82 ; Laws of 1850, c. 150 ; Laws of 1850, c. 162; Laws of 1863, c. 362, § 6; Laws of 1863, c. 400; Laws of 1864, c. 71, § 9; Laws of 1869, c. 260; Laws of 1869, c. 845 ; Laws of 1872, c. 92. Said statutes may be found in Edmonds' edition of the statutes, as follows : Vol. II, p. 102; Vol. IV, pp. 494, 499, 506, 508 ; Vol. VI, pp. 126,142,234; Vol. VII, pp. 433, 485; Vol. IX, p. 327. ' Hyde v. Tanner, 1 Barb. 75. 3 Brevoort v. McJimsey, 1 Edw. 561. CHAPTER V. EXTENT OF THE LIEN, AND REMEDIES .ON ACCOUNT OF WASTE. Lien of a Mortgage on a Bight of Action for Damages to the Estate. A moktgage carries with it the prior right to damages awarded for an injury done to. the freehold, whereby the security has been impaired, especially where the debtor is insolvent. "When damages are awarded for a public improvement, they arise from or grow out of the land, by reason of the injury which has diminished its value. In equity they are the land itself, for the award takes the place of the reduced value of the land. 1 The title to the land, to the extent of his lien, is in the mort- gagee, 2 and he has an equitable lien on the award if what re- mains of the property is insufficient to pay his debt. 3 If -an award be made to the mortgagee for lands taken for a public improvement, the lien of the mortgage is thereby trans- ferred to the award ; it cannot be foreclosed as against the lands thus taken, and the proper remedy is by a regular proceeding to obtain the award. 4 But if no award is made to or received by the mortgagee, he cannot bring an action against the public to obtain the award, and, his lien not being destroyed or taken away, his only remedy is by foreclosure. 5 1 Bant of Auburn v. Roberts, 44 N. Y. 192 ; affi'g s. c. 45 Barb. 407. 2 Stow v. Tiflffc, 15 Johns. 458. 3 Bank of Auburn v. Roberts, 44 N. T. 192 ; affi'g s. o. 45 Barb. 407 ; Astor v. Hoyt, 5 Wend. 603. 4 Fhephard v. The Mayor, yty any statute, mort- gage or incumbrance, and if he can defend by them at law, his adversary shall have no help in equity to set those incumbrances aside. And as mortgagees are considered in equity as pur- chasers pro tanto, the same doctrine has extended to them, and a mortgagee who has advanced his money without notice of any prior incumbrance, may, by getting an assignment of a statute, judgment, mortgage or recognizance, protect himself from any incumbrance subsequent to such statute, judgment, mortgage or 1 Haywood v. Nooney, 3 Barb. 643. 2 Cunningham y. Knight, 1 Barb. 399. * Wyckoffv. Remsen, 11 Paige, 564. 1 Jackson v. Dubois, 4 Johns. 216; Schmidt v. Hoyt, 1 Edw. 652. 8 Jackson v. Dubois, 4 Johns. 216. 10 Tifft v. Buell, Gen. T. March, 1856, cited in Clinton's Digest. 100 THE LAW OF MORTGAGES. recognizance, though prior to his mortgage : that is, he will be allowed to tack, or unite his mortgage to such old security, and will by that means be entitled to recover all moneys for which such security was given, together with the money due on his. mprtgage, before the intermediate mortgagees are entitled to recover anything. 1 Thus if a third mortgagee without notice of a second mortgage, should purchase in the first mortgage, by which he would acquire the legal title, the second mortgagee would not be allowed to redeem the first mortgage without re- deeming the third mortgage also. 3 The general reasoning by which this doctrine is maintained is that as between the various incumbrancers the equities are equal, and that, in such case, the law must prevail. 3 This doctrine is known as the " equitable doctrine of tacking;" it has been disapproved by most writers as tending to gross injustice, and it stands as a monument of the misleading tendency of technical rules which have no foun- dation in the principles of natural justice. The doctrine of tacking is inconsistent with our recording acts, and has never been adopted or recognized in this State. In the first place the English rule only protects a third mort- gagee who purchases without notice of the second mortgage, and the record gives such notice ; in the second place the re- cording acts themselves control in regulating priority. 4 The doctrine of tacking has also ■ been repudiated in other States, having recording acts. 5 1 Bouvier's Law Diet. tit. Tacking ; 2 Fonbl. Eq. 306. » Story's Eq. Jur. §412. 8 Story's Eq. Jur. § 413. 4 Grant v. BisBett, 1 Cai. Cas. in Er. 112; Frost v. Beekman, 1 Johns. Ch. 298, 299; Parkist v. Alexander, 1 Id. 398, 399; McKinstry v. Mervin, 3 Id. 466; Burnet t. DennistoD, 5 Id. 35; St. Andrew's Church v. Tompkins, 7 Id. 14; Brig- den T. Carhart, Hopk. Ch. 234; Bank of Utiea v. Finch, 3 Barb. Ch. 293, 298. . ' Osborn v. Carr, 12 Conn, 196; Averill v. Guthrie, 8 Dana, 82; Brazee t. Lancaster Bank, H Ohio, 318; Anderson v. Neff, 11 S. 4 R. 208; Thompson t. Chandler, 1 Me. 381 ; Siter v. McClanachan, 2 Gratt. 305. CHAPTER X. ASSIGNMENT OF MORTGAGES. In what way an Assignment of a Mortgage can he made. As a mortgage is a mere incident of the debt which it is intended to secure, 1 it follows that whatever is sufficient to transfer the title to the debt will also transfer the interest of the mortgagee in the land. 3 Upon this principle, since one of sev- eral executors or joint creditors can assign a debt, one of them can also assign the security which accompanies the debt. 3 Upon a like principle, the debt being the principal obligation, a guar- anty of its payment would generally pass with an assignment of the debt as a security collateral thereto, and a formal assign- ment of the guaranty would not be necessary to vest the same in the assignee of the bond ; 4 but this would not apply unless the covenant of guaranty was such that it could properly be assigned. 5 A mortgage is not considered a conveyance of land within the statute of frauds, and it may be assigned by parol. 6 The assignment must, however, be of the bond or evidence of debt as well as of the mortgage, since the transfer of the mortgage 1 Green v. Hart, 1 Johns. 680 ; Jackson v. Blodget, 5 Cow. 202 ; Jackson v. Bronson, 19 Johns. 325 ; Wilson v. Troup, 2 Cow. 231 ; Cooper v. Newland, 17 Abb. 342. ! Wyman v. Smead, 31 How. 1 ; Langdon v. Buel, 9 Wend. 80 ; Jackson v. Blodgett, 5 Cow. 202 ; Parmelee v. Dann, 23 Barb. 461 ; Pattison v. Hull, 9 Cow. W. s Bogert v. Hertell, 4 Hill, 492. 4 McLaren v. Watson's Ex'rs, 26 Wend. 425. 5 Smith v. Starr, 4 Hun, 123. 6 Allerton v. Lang, 10 Bosw. 362 ; Bedell v. Carll, 33 N. Y. 581; Westerlo v. De Witt, 36 N. Y. 340 ; Mack v. Mack, 3 Hun, 323; s. c. 5 N. Y. Sup. (T. & C.) 528. 102 THE LAW OF MORTGAGES. without the debt is a nullity, and no interest is acquired by -it. The security cannot be .separated from the debt and exist inde- pendently of it, 1 and it is a legal maxim that the incident shall pass by the grant of the principal, but not the principal by the grant of the incident. 3 If, therefore, the wife of a mortgagor is also the owner of the mortgage, the mortgage will not be as- signed to a purchaser by a conveyance in which she joins, nor will her lien be inferior to a subsequent mortgage in which she joins in order to bar her inchoate right of dower ; 3 and the same rule will apply where one of several joint owners of prop- erty holds a mortgage upon it. 4 The rule that the mortgagee's interest in the land is not capable of being assigned by itself, must be qualified so as to include only cases where there is a mortgage debt, for a mort- gage lien may exist without any personal obligation. It is pro- vided by statute, that " no mortgage shall be construed as im- plying a covenant for the payment of the sum intended to be secured ; and where there shall be no express covenant for such payment contained in the mortgage, and no bond or other sepa- rate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage." 5 The assignment of a mortgage given without a bond or other extrinsic evidence of debt, and containing no express covenant to pay, transfers to the assignee all of the mortgagee's claim under the mortgage ; that is to say, his remedy against the land. 6 Since the transfer of the debt carries with it the mortgage, it is quite important for the purchaser of the mortgage to re- quire the production and delivery of the bond where there is one. If he neglects to do so, he is said to be chargeable with 1 Jackson v. Willard, 4 Johns. 41 ; Aymar y. Bill, 5 Johns. Ch. 570 ; Cooper v. Newland, Iff Abb. 342. 2 Merritt v. Bartholick, 36 N. Y. 44; a. c. 47 Barb. 253. ' Power v. Lester, 28 N. T. 527 ; s. c. Iff How. 413 ; Gillig v. Maas, 28 N. Y. 191. • Aymar r. Bill, 5 Johns. Ch. 570 ; Purdy v. Huntington, 43 N. Y. 334 ; see, contra, Williamson v. Thorn, 11 Paige, 459. ' 1 E. S. 738, § 139. * Hone v. Fisher, 2 Barb. Ch. 560 ; Severance v. Griffith, 2 Lans. 38 ; Caryl v. Williams, 7 Lans. 416 ; Coleman v. Van Rensselaer, 44 How. 368. ASSIGNMENT OF MORTGAGES. 103 negligence fatal to his right to recover upon the mortgage as against a prior purchaser who had acquired possession of the written evidence of the debt, and in this respect he is not pro- tected by the recording act. 1 But while a mortgage, and the debt which it secures, may be assigned by delivery, the possession of a bond and mortgage, coupled with proof of an advance of money, is not sufficient to establish a transfer, either absolute or conditional. In England, a very common mode of securing a loan of money is by de- positing the title deeds of the borrower with the lender for that purpose, and such deposit constitutes a valid lien in equity ; but here mortgages are very rarely transferred by an agreement and delivery without writing, and, in the absence of written evidence, there is a presumption against any transfer. 3 An Assignee of a Mortgage takes it subject to the Equities of the Debtor. "Where a negotiable note is secured by a mortgage, a bona fide assignee, before maturity, takes it free from any equities between the original parties ; 3 but a bond, whether secured by mortgage or not, and whether it be in the hands of the obligee or of his assignee, carries with it no conclusive presumption of validity. It is a mere chose in action ; the obligor may im- peach its consideration or establish any other valid defense against it while it remains in the hands of the obligee, and, as a general rule, his rights in this respect cannot be changed by a transfer of the rights of the obligee to a third person. In the transmission of property of any kind from one person to an- other, the former owner can, in reason, only transfer what he himself has to part with, and the other can only take what is thus transferred to him. The cases in which, from motives of public policy, to promote the currency of certain securities, to prevent fraud, or to aid the vigilant against the careless, the 1 Kellogg v. Smith, 28 N. Y. 18. 2 Bowers v. Johnson, 49 N. T. 432. 3 Gould v. Marsh, 4 N. Y. Sup. (T. & C.) 128 ; s. o. 1 Hun, 566; Reese v. Scully, "Walker Ch. R. 248; Carpenter v. Longan, 6 Wall. (U- S.) 271 ; Kenicott v. Supervisors, Id. 452 ; Taylor v. Page, 6 Allen, 86 ; Croft v. Bimster, 9 Wis. 510. 104 THE LAW OF MORTGAGES. i- party to whom the transfer is made is allowed to claim a greater interest than was possessed by the other, are exceptional, and no general rule protects the assignees of bonds secured by mortgages from the defects in the titles of their assignors. The rule as generally stated is, that the purchaser takes only the interest which his assignee had to part with ; or as was ex- pressed by Lord Thurlow : " A purchaser of a chose in action must always abide by the case of a person from whom he buys." " This (he said) I take to be the general rule." l In other words, as the doctrine is more commonly expressed, the assignee of a chose in action takes it subject to the same equities to which it was subject in the hands of the assignor. If these equities are understood to mean only the equities residing in the original obligor or debtor, the authorities will be found to be numerous and uniform in favor of the proposition. 3 It would seem to be settled that where the question is as to whether the debt exists, all defenses are as available against the assignee as they were against the original party to the instru- ment. If the debt is conceded to exist, it at once becomes a piece of property, and the rights of «the owners or assignees of a bond must be judged by the same rules which would govern in the case of a horse or of a share of stock. 3 But the owners of the debt cannot, by transferring it, make any difference in the obligation of the debtor; and when the validity or the amount of the debt is in dispute, whether the debtor or those claiming under him, as grantees 4 or judgment creditors 5 or mechanics' leinors, 6 or otherwise interested, on the one side ; or 1 Davies v. Austin, 1 Vea. 247. a Murray v. Lylburn, 2 Johns. Ch. 441 ; Livingston v. Dean, 2 Johns. Ch. 479 ; James v. Morey, 2 Cow. 246 ; Pendleton t. Fay, 2 Paige, 202; Evertson y. Evert- son, 5 Paige, 644; LAmoureux v. Vandenburgh, 7 Paige, 316; Evans v. Ellis, 6 Den. 640; Ellis v. Messervie, 11 Paige, 467 ; Richards v. Warring, 1 Keyes, 576 ; Bush v. Lathrop, 22 N. Y. 535 ; Reeves v. Kimball, 40 N. Y. 299 ; Mason v. Lord, 40 N. Y. 476 ; Moore v. Metropolitan National Bank, 55 N. Y. 41 ; Ingrabam v. DisboroUgh, 47 N. Y. 421 ; Clute v. Robison, 2 Johns. 595 ; Ely v. McNight, 30 How. 97 ; Westfall v. Jones, 23 Barb. 9 ; Mickles v. Townsend, 18 N. Y. 575. 'Moore v. The Metropolitan National Bank, 55 N. Y. 41. 4 Hartley v. Tatham, 24 How. 505. 5 Rosevelt v. Bank of Niagara, Hopk. Ch. 579. " Schafer v. Reilly, 50 N. Y. 61. ASSIGNMENT OF MORTGAGES. 105 whether the original creditor or his assignee be found on the other side, are questions of no importance. The debt cannot be either created or enlarged by passing it from hand to hand ; and the debtor, or those claiming his rights, may assert them at any time, and as against any person to whom the claims of the creditor may have been transferred. It is a matter of no im- portance to the debtor as to what the nature of the dealings of the creditor with his debt has been, and unless he has made himself a party to a transfer by his acts or statements, he can defend himself equally well if the transfer be for a valuable consideration as if it be for none at all. Distinction between Latent Equities and .Equities of the Obligor. In an early case * it was said by Chancellor Kent that the rule that the purchaser of a chose in action takes it subject to the same equity it was subject to in the hands of the assignor, was not to be understood to include an equity residing in some third person against the assignor. The assignor can always go to the debtor and ascertain what claims he may have against the bond or other chose in action which he is about purchasing from the obligor ; but he may not be able, with the utmost diligence, to ascertain the latent "equity of some third person against the assignee. He has not any object to which he can direct his inquiries, and for this reason it was thought to be equitable that if he became a purchaser for value, without notice of any defect in the title of his assignor, and with no means of ascertaining whether there was any such defect, he ought to be protected. Chancellor Kent gave, as an illustration of a latent equity, a case of the setting up by a third .person of a secret equity against the assignor, 3 and such an equity would be unquestion- ably disregarded in favor of a bona fide purchaser without notice. 3 In all such cases, and wherever notice to an assignee is 1 Murray y. Lylburn, 2 Johns. Ch. HI-, Livingston y. Dean, 2 Johns. Ch. 479. 3 Murray v. Lylburn,. 2 Johns. Ch. 441. ' Crocker v. Crocker, 31 N. Y. 507. 106 THE LAW OF MORTGAGES. fatal to his claims, a bona fide purchaser without notice is not prejudiced by notice to his assignor. 1 In Bebee v. The Bank of New York (1 Johns. 529), Chan- cellor Kent attempted to sustain the distinction between latent equities and equities of the obligor, and he was overruled, Judges Spencer and Tompkins both disagreeing with him. He afterwards reaffirmed the doctrine in Murray v. LyXbum (2 Johns. Ch. 441), and in Livingston v. Dean (2 Johns. Ch. 479). It is not clearly denned what a latent equity is, 2 and the phrase could hardly be taken as a safe guide, even if the distinction between patent equities and latent equities could be maintained. In the case of Bush v. Zathrop (22 E". Y. 535), it was, indeed, determined, after a very elaborate examination of the author- ities by Judge Denio, that the distinction had no foundation in our jurisprudence. An Assignee of a Mortgage takes it subject to the Equities of Third Persons who had acquired Bights in the Mortgaged Premises previous to the Assignment. Upon general principles, a mortgagor can only charge the estate to the extent of his interest in it, and the mortgagee can transfer only such interest as he receives. The presumption, therefor^, is that, as between the equities of persons claiming interests in or liens upon lands, the one which is prior in time is also prior in right, and that an assignee of a mortgage stands exactly in the position of his assignor, whether the rights of that position were known to him at the time of receiving the assignment or not. Those cases in which the assignee of a mortgage acquires a priority 6ver other rights in the estate which was not possessed by his assignor, are exceptions to the general rule, and such, priority is derived in most, if not in all cases, from the provisions of the recording acts, or from the equitable doctrine of estoppel. 'Jackson v. Henry, 10 Johns. 185; Jackson v. Yan Yalkenburgb, 8 Cow. 260 ; Varick v. Briggs, 6 Paige, 323 ; Bort v. Burch, 5 Den. 187; Bush v. Lath- rop, 22 N. T. 549. ' Micldes v. Townsend, 18 N. Y. 580. ASSIGNMENT OF MORTGAGES. 107 A review of some of the cases in which such questions have arisen may be useful. In Van Rensselaer v. Stafford (Hopk. 569 ; affi'd on ap- peal in 9 Cow. 316), one Van Dusen sold to "W. lands which he had bought of Yan Rensselaer, and for which he was partly indebted to Y. E., and took from W. two mortgages of equal date, intending that one should have priority and be assigned to Y. R. for the original purchase money due to him. The mortgages were registered concurrently, but one of them was soon after assigned to Y. R. Afterwards Y. D. assigned the other to Stafford in good faith for value, without notice of Y. R.'s intended priority. It was held that Stafford stood in the place of Y. D., and held his mortgage subject to all the equity which Y. R. had against Y. D., and Y. R.'s mortgage was declared to have a priority. In Greene v. Deal (4 Hun, 703), two bonds and mortgages of the same date were executed upon the same property for the purchase money. It was intended by the parties that they should be equal as to priority. They were recorded on the same day, but one was recorded at a later time than the other. After the recording of both of the mortgages, the one which had first been recorded was assigned to a purchaser who paid value, and who had no notice of the agreement that the mort- gages should be equal as to priority. The Supreme Court, at General Term (4 Hun, 703), held that the assignee might avail himself of the earlier recording of his mortgage, and that it was a prior lien to the other ; but the Court of Appeals reversed this decision, and decided that the assignee of the mortgage was bound by the parol agreement which had been made by his assignor with the owner of the other incumbrance. 1 Aside from the recording acts, the assignee took his mortgage subject to the equities between his assignor and the other mortgagee ; and there was nothing to estop the other mortgagee from as- serting his rights, as he did not nothing to induce the assignee to purchase, and did not, by any act or omission, mislead him. The recording act did not affect the rights of the parties, as 1 Decided February 15th, 1876, and not yet reported except, in the memo' randum in the N. Y. Weekly Dig. vol. 2, p. 149. 108 THE LAW OF MORTGAGES. that only applies to subsequent incumbrances which are first re- corded, and neither mortgage was a subsequent conveyance to the other, both being executed at the same time. The only ef- fect of the recording of an assignment of a mortgage is to pro- tect the assignee against a subsequent sale of the mortgage it- self, the recording act only applying to successive purchasers from the same sellers. 1 The assignee of the mortgage first re- corded was held not to have gained any rights by his assign- ment as against the owner of the other mortgage, except such as had been possessed by his assignor. In Delancey v. Stearns (decided May 23, 1876, but not yet reported except by memorandum in the Albany Law Journal, vol. 13, p. 450), B. took a mortgage in payment of an antece- dent debt, and without relinquishing any security or giving any new consideration. B. had notice at the time of an unrecorded mortgage on the same premises. Subsequently B. assigned the mortgage for value to B., who had no notice of the unrecorded mortgage. It was held by the Court of Appeals that B. stood in no better position than B. as to such unrecorded mortgage, and that although, on the question of notice, the iona fide assignee of a mortgage for value may stand in a better position than the mortgagee, he cannot- on the question of the consideration of the mortgage, either as between himself and the mortgagor or third persons. In Sehafer v. Heilly (50 N". Y. 61), a mortgage was made without consideration, to be sold by the mortgagee for the benefit of the mortgagor, and it was duly recorded. Subse- quent to the record of the mortgage, a mechanic's lien upon the property was perfected. After the perfecting of the mechanic's lien a purchaser of the mortgage received an assignment of it, and paid a valuable consideration therefor, relying upon a sworn statement of the mortgagor (untrue in fact) that the mortgage was a valid security for the whole amount secured by it, and that the money was advanced by the mortgagee for it. It was held that the mortgage became valid only, because of the estop- pel of the mortgagor, and that its lien commenced at that time ; that the holder of the mechanic's lien was not bound or prej- 1 Purdy v. Huntington, 42 N. Y. 334. ASSIGNMENT OF MORTGAGES. 109 1 udiced by the acts of tlie mortgagor subsequent to the time when his rights vested, and that his equities were superior to those of the assignee of the mortgage. 1 It may properly be said that the principles of these cases do not afford encouragement to purchasers of mortgage securities. Curious questions will be presented in connection with nego- tiable promissory notes secured by mortgages, as between the indorsees or transferees of such notes, whose rights were per- fected subsequently to the perfecting of a lien upon or a con- veyance of the mortgaged premises, and the lienor or grantee. As against the maker of the note the indorsee will acquire a perfect title free of all defenses ; 2 but it does not at all follow that if a valid lien is obtained upon the land before the note comes into the hands of a bona fide purchaser, the holder of the lien may not assert any of the defenses which existed against the note at the time his right accrued, in order to protect his title. When the Assignee of a Mortgage takes it subject to the Equities of Third Persons claiming Sights in the Mortgage. If the validity of the mortgage be conceded, and if there be no question as to its priority of lien, there may still be question as- to the title of the mortgagee to it, and of his right to assign it. A debt secured by mortgage is an article of personal prop- erty, and an assignment of it may, for most purposes, be judged by the same rules which control transfers of other choses in action. If the mortgagee shall have parted with the title to one person, he cannot thereafter confer a title on another ; 3 but there are cases where the . true owner of a mortgage may, by allowing another person to hold the apparent title, confer upon him the power of conveying it. The following cases, will illustrate the rules which govern in this class of questions : In Covell v. The Tradesmen's BanTc (1 Paige, 131), Covell ' See also Trustees of Union College v. Wheeler, CI N. Y. 88. 1 Gould t. Marsh, 4 N. T. Sup. (T. & C.) 128 ; s. c. 1 Hun, 566. s Kellogg T. Smith, 26 N. Y. 18. 110 THE LA.W OF MORTGAGES. had a sealed note for $2,425 against Hunt, payable to himself in a year. He borrowed $100 of Mullins, and pledged the note to secure it, indorsing his name in blank. M. being in- debted to the Tradesmen's Bank in $2,600, and pretending to own the note, transferred it to the bank in payment of $1,000 of that debt, and received the balance of the note in money. He indorsed the note in blank, and delivered it to the bank. All this was within two months after the sealed note was given. Covell having paid M. in full, claimed the note of the bank, and it was held, that having both the prior equity and the legal title, he was entitled to the note. In Poillon v. Martin (1 Sandf. Ch. 569), Poillon, who was the owner of a mortgage, sold and transferred it to the manag- ing clerk of Williams, who was his solicitor and confidential adviser, for worthless notes of a county bank, being persuaded to make the sale in part by the conduct of "W". A few days after, the first assignment was destroyed, and a new one was made by P. to B., for the benefit of "W. After this, J. bought the mortgage from "W. in good faith, for value paid, without notice, and received an assignment from B. It was held, that the transfers to "W.'s clerk and to his friend for his benefit were void, because of the confidential relation between him and P. It was further held, that J. was not protected as against P.'s prior equities, and that he must lose the mortgage which he had innocently purchased. In Sweet v. Van Wyck (3 Barb. Ch. 647), it is said that where a bond and mortgage are assigned as security for debt, a subse- quent assignee takes the same subject to the right of the original assignor to redeem the securities, upon paying the amount of the loan for which such bond and mortgage was pledged, with interest. It does not appear, in this case, whether the assignee was or was not a bona fide purchaser with- out notice. In Bush v. Lathrop (22 1ST. Y. 535), a mortgage for $1,400 ' and interest, was assigned as collateral security for $268 20, by an instrument absolute upon its face, with a consideration ex- pressed of $268 20. The assignee afterwards transferred it for its full value, and the question was presented as to whether the final assignee could hold the mortgage for its full amount. The ASSIGNMENT OF MORTGAGES. Ill authorities were quite fully reviewed by Denio, J., and it was held, by a divided court, that the holder of the mortgage was bound by the condition for redemption, and that the equity of the assignor was not destroyed by the assignment. A similar question was, however, presented in Moore v. The Metropolitan National Bank (55 N. Y. 41), and the principle in Bush v. „ Lathrop, was there repudiated and overruled. The distinction between patent and latent equities was not relied upon, but it was held that where a person has conferred upon another an ap- parently valid title to a, chattel, he ought, equitably, to be pre- cluded from asserting his title against a bona fide purchaser from such apparent owner upon the faith of the title which he had apparently given. Another reason was that were the rule otherwise, it would afford opportunities for the perpetration of frauds upon the purchasers from such apparent owners. Where one, known to be the owner of chattels, delivers them to another, together with an absolute written transfer of all his title thereto, he thereby enables him to hold himself out as owner, and as such, obtain credit upon and make sales of the property ; ( and if, after he had so done, the owner was permitted to come in and assert his title against those dealing upon the faith of these appearan3es, the dishonest might combine and practice the grossest frauds. Another .reason is that such a case is a proper one for the application of the legal maxim that, where one of two innocent parties must sustain a loss from the fraud of a third, such loss shall fall upon the one, if either, whose act has enabled such fraud to be committed. These principles had been applied in McNeil v. The Tenth National Bank (46 N. Y. 325), to a case where the transfer was of shares of stock in an incorporated company, and in Moore v. The Metropolitan National Bank {supra), they were held to apply with all of their force to choses in action. There is no reason why the owner of a horse or of bank shares, who has given to another a transfer of all his right thereto for some other purpose than of passing the title, ahould be precluded as against a oona fide purchaser from such person, from asserting his title, while, un- der the same state of facts, he may reclaim from such purchaser a bond and mortgage or a certificate of indebtedness. As to 112 THE LAW OF MORTGAGES. the former, he is estopped, and as to the latter, the innocent purchaser will also be protected. 1 A similar principle was declared in Dillaye v. The Commer- cial Bank of Whitehall (51 1ST. Y. 345), in which it was de- termined that where a trustee is clothed with full power to manage and control the trust estate, an assignment by him of a mortgage impressed with the trust to a oona fide purchaser or pledgee, cannot be impeached by the cestui que trust. Rules for Determining what Equities are Destroyed oy an Assignment to a bona fide Purchaser. The following propositions appear to be sustained by the decisions already cited : 1. The assignment of a bond and mortgage operates as a grant or transfer of the interest of the assignor in the debt or obligation, and in the land as security therefor. This is all that, in any event, or under any circumstances, can be received by the assignee from the assignor. 2. The assignee may acquire the rights of third persons, either under the recording acts, because the rights of such third persons did not appear upon the public records when a positive rule of law requires that they should so appear, or because such third persons have by their actions or by their omitting to act, rendered it inequitable that they should assert their rights as ■against him. In either case, the rights of the assignee may be said to depend upon an estoppel against the persons whose rights are cut off for his benefit. Such an estoppel operates as an equitable grant, and the rights which are acquired by the assignee, and which were not possessed by the assignor, depend upon such estoppel or equitable grant, and not upon the assign- ment. 3. The liability of the mortgagor upon his bond for the debt is inherited by his personal representatives, no matter in whose hands the obligation may be, and he may render a void bond 1 See Cutts v. Guild (57 N. Y. 229), in which the doctrine of Bush v. Lathrop was approved by the Commission of Appeals. See also, to same effect, Trustees of Union College v. Wheeler, 61 N. Y. 88. ASSIGNMENT OF MORTGAGES. 113 obligation binding upon himself and them in the hands of a purchaser of it by acts which render it dishonest to deny that it is so. In the same way he may, so long as the land continues to be his, bind the land' by the mortgage by way of estoppel, and thereby cut off a defense which might otherwise be made ;. and such estoppel will bind himself and those who acquire, interests in the land under him subsequent thereto. But it will not bind interests which vested previous to "such estoppel, 1 and the owners of interests which had previously vested can only have their property taken away from them by some act or neglect of their own, as, for instance, by omitting to record the instruments upon which their rights depend, when the law re- quires that they should be recorded. 4. "When questions arise as to the title to the mortgage itself, all the claimants agreeing with regard to its validity, such ques- tions are to be decided upon the same principles which would govern if the subject of the controversy were a horse or any other chattel, except that the recording acts are to be considered in the cases to which they may apply. When the Mortgagor will he Estopped from setting up a De- fense as against an Assignee of the Mortgage. Since a mortgage carries with it no conclusive presumption of validity, it is never safe to take an assignment of a mortgage without first making inquiry of the parties who might possibly have some claim or defense against it as to their rights. If this inquiry be made in good faith, the answers in relation to the instrument are conclusive as against the parties making them, and all persons afterwards claiming under such parties, in favor of the person making the inquiry and acting upon the informa- tion received, by way of estoppel. 2 An estoppel in pais is denned to be " an admission or state- ment, made by one individual, intended to influence the conduct 1 Sohafer v. Reilly, 60 N. Y. 61. 2 Payne v. Burnham, 2 Hun, 143; s. o. 4 N. T. Sup. (T. mortgaged premises to the purchaser thereof, but on the comings in of the report of sale, the court shall also have power to de- cree and direct the payment by the mortgagor, of any balance of the mortgage debt that may remain unsatisfied,,after a sale of the premises, in the cases in which such balance is recoverable^ at law ; and for that purpose, may issue the necessary execu- tions, as in other cases as against other property of the mort- gagor or against his person. 4 If the mortgage debt be secured by the obligation or other evidence of debt of any other person beside the mortgagor, the plaintiff may make such person a party to the action, and the court may decree payment of the balance of such debt remaining unsatisfied, after a sale of the- mortgaged premises, as well against such other person as th& mortgagor, and may enforce such decree as in other eases. 5 If the mortgagor shall have conveyed the mortgaged prem- ises to a person who is one of the defendants, and who has, assumed the payment of the mortgage debt, he would be a proper party to the action if the plaintiff desired to obtain a judgment against him, but he would not be a necessary party, and the person who had assumed the debt having become the primary debtor, would have joo just cause of complaint if h& 1 Griswold v. Fowler, 6 Abb. 113. * Elmendorf v. Lockwood, 4 Lans. 393. 8 Crooke v. O'Higgins, 14 How. 154. 4 2R. S. 191, § 152. «2 R. S. 191, §154. PARTIES TO FORECLOSURE. 249 were not a party. 1 But where the plaintiff makes a mere surety of the mortgagor for the payment of the debt, a party for the purpose of obtaining a judgment against such surety for any deficiency, if the mortgaged premises are found to be insuffi- cient to satisfy the debt and costs, such surety has a right to insist that the principal debtor shall be made a party to the action if he is within the jurisdiction of the court. 3 A person who guarantees the payment of the mortgage debt, either in his assignment of the mortgage to the plaintiff or otherwise, is a proper party to the action, and judgment can be rendered against him in it for deficiency. 3 So, too, a person, who has guaranteed the collection of the mortgage debt is a proper party, but in such a case the judgment should provide that no execution should issue as against him until an execution against the parties primarily liable had been returned unsatis- fied. 4 It has also been held that a defendant who covenanted that a mortgage was due and collectible is a proper party. 5 "Where the owner of a mortgage assigned the same with a covenant that the amount of the mortgage was due and collect- ible, and subsequently took the bond of a third person as his indemnity, it was held that the assignee, of the mortgage was, in equity, entitled to the benefit of this collateral bond as security for the mortgage debt ; and also that in a suit for the fore- closure of the mortgage, the obligor in such bond was properly made a defendant to enable the complainants to obtain a decree over against him for the deficiency. 6 It has been said that there is no legal objection to making the personal representatives of a person liable for the payment of the mortgage debt, parties to the action, for the purpose of obtaining a judgment against them for the payment of any de- ficiency out of the estate of the decedent in their hands ; to be paid in a due course of administration. In most cases, however, it is a useless expense to make the personal representatives, even of the mortgagor, parties to the action to foreclose the mort- 1 Drury y. Clark, 16 How. 424. s Bigelow v. Bush, 6 Paige, 343. 8 Bristol v. Morgan, 3 Edw. Ch. 142; Rushmore v. Gracie, 4 Edw. Ch. 84. 4 Leonard v. Morris, 9 Paige, 90. B Curtis v. Tyler, 9 Paige, 432. • Curtis v. Tyler, 9 Paige, 432. 250 THE LAW OF MORTGAGES. gage, for no judgment can be made for the payment of the deficiency out of the estate of the decedent, so as to entitle the plaintiff to an execution, until a full account of the admin- istration of the estate has been taken; except in those cases where (the executors and administrators admit assets suffi- cient to pay the plaintiff's debt, and all other debts of an equal and of a higher class which were due by the decedent. 1 It has, indeed, been held that no personal judgment of any kind for deficiency can be rendered against the personal repre- sentatives of a deceased mortgagor in an action to foreclose a mortgage, 2 and this seems to be the better opinion. , The plaintiff cannot make the heirs or devisees of. a deceased mortgagor or guarantor, who have no interest in the mortgaged premises, parties' to the action, for the purpose of obtaining a judgment for deficiency which shall bind the real estate of the decedent which has come to them by descent or devise. 8 When the Assignor of a Mortgage is a Necessary or Proper Party to an Action to Foreclose it. "Where a mortgagee parts with all his interest in the mort- gage by assignment, and has no connection afterwards with the mortgaged premises, it cannot, in general, be necessary for the assignee to make him a party to the action to foreclose ; 4 but it is believed that it is always proper to make such assignor a party. In cases where the assignment is by way of security, although it be absolute in terms and express the payment of a full consid- eration, the assignor is not only a proper but a necessary party to the action ; 5 the reason given for the rule being that the assignor of the mortgage having a right to redeem it, also has the right to show that the debt which the assignment was given 1 Per Walworth, Cas., in Leonard v. Morris, 9 Paige, 90. 2 Rhodes v. Evans, Clarke, 168. 3 Leonard v. Morris, 9 Paige, 90. * Johnson v. Hart, 3 Johns. Cas. 322 ; Whitney y. McKinDey, 7 Johns. Ch 144 ; Christie v. Her rick, 1 Barb. Ch. 254; Western Reserve Bank v. Potter, Clarke, 432 ; Ward v. Van Bokkelen, 2 Taige, 289 ; Andrews v. Gillespie, 47 N. Y. 487. Kittle v. Van Dyck, 1 Sandf. Ch. 76 ; Johnson v. Hart, 8 Johns. Cas. 322 ; Whitney v. McKinney, 7 Johns. Ch. 144 ; Bard v. Poole, 12 N. Y. (2 Kern.) 496. PARTIES TO FORECLOSURE. 251 to secure has been paid, and he is entitled to be brought before the court to enable him to do so. 1 It has also been determined that, where the ownership of the mortgage being foreclosed is doubtful or in dispute, the court will, at the instance of any of the parties to the action, order the various claimants to be made parties. 2 These decisions would seem to indicate that it is proper in a foreclosure suit to determine, not only the rights of claimants in the equity of redemption as against the mortgagee, but also the rights of different claimants to the mortgage. If the assign- ment of the mortgage be by parol, it would appear to be neces- sary for the protection of a purchaser under the judgment to give the assignor a day in court, to answer the allegation that the assignment had been made by him, and where it is in writ- ing but is not so executed as to be capable of being recorded, the same rule would apply. A similar course of reasoning would show the assignor to be a proper party where the assign- ment was in writing and recorded, so as to bind him by the alle- gation that the assignment was absolute and without condition. It was. said by the court in Bloomer v. Sturges y (58 N". T. 168, 175), that the interest of an assignor of a mortgage assigned by way of security, that it should bring more than the amount as security for which it has been assigned," is the only ground on which he needs to be a party, but the statement was not nec- essary to the determination of the case, the decision being to the effect that where an assignor is made a party defendant he is bound by the judgment in the action, and when the property is sold under the judgment for less than the debt which the as- signment is given to secure, no right of redemption remains in the assignor. It has been adjudged that if the assignee forecloses the mortgage by advertisement 3 or by action, the assignor being a coplaintiff, 4 and afterwards purchases under the foreclosure, he will hold the land or the proceeds thereof subject to the equita- ble right of the assignor of the mortgage to redeem, but, it will be remarked that in neither of these cases was the assignor a 1 Bard v. Poole, 12 N. Y. (2 Kern.)- 495. * Kortright t. Smith, 3 Edw. 402. s Slee v. Manhattan Co. 1 Paige, 48. * Hoyt v. Martense, 16 N..Y. 231. 252 THE LAW OF MORTGAGES. defendant in an action to foreclose, and in neither case did the judgment of foreclosure assume to adjudicate upon his rights. 1 By the sale and assignment of the mortgage the assignor im- pliedly warrants that there is no legal defense to its collection arising out of its origin, 8 and it would be convenient to have the assignor in court if any defense should be interposed the success of which would make him liable upon his implied cove-- nant. But it is not necessary to mate him a party to accom- plish this object. .Upon the coming in of an answer, the plaintiff may give notice to the assignor, and offer him the conduct of the action, and upon his so doing the assignor will be bound by the result of the litigation, whether he takes any part in it or not. 3 1 See these cases distinguished and limited in Bloomer v. Sturges, 58 N. Y. 168. 2 Delaware Bank v. Jarvis, 20 N. Y. 226. 3 Andrews v. Gillespie, 47 BT. Y. 487. CHAPTER XXI. NOUCE OF THE PENDENCY OF THE ACTION TO FORECLOSE. Statutory Provisions Relative to Filing Notice of the Pendency of the Action. Independent of statute provisions, it is a well established rule that he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title. The litigating parties are ex- empted from taking any notice of the title so acquired ; and such purchaser need not be made a party to the suit. And hence arises the maxim pendente lite, nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litiga- tion. 1 No notice other than that which is implied by the general rule of law, was required for the purpose of binding purchasers pendente lite, until the year 1823, when it was provided, in the act vesting equity powers in circuit judges, 8 that when any bill was filed before them or in the Court of Chancery, which would according to law amount to constructive notice to purchasers of real estate, it should not be so deemed unless a notice should be filed in the office of the clerk of the county where the land was situated. The substance of this provision was re-enacted in the Revised Statutes, 3 and in section 132 of the Code, it is applied to actions affecting the title to real property. 1 Story's Eq. Jur. § 406 ; Murray v. Ballou, 1 Johns. Ch. 666 ; Murray v. Lylburn, 2 Id. 441; Hayden v. Bucklin, 9 Paige, 512; Jackson v. Losee, 4 Sandf. Ch. 381; Zeiter v. Bowman, 6 Barb. 133 ; Griswold v. Miller, 15 Id. 520; Cleve- land v. Boerum, 23 Id. 201 ; 27 Id. 252 ; 3 Abb. 294. ' Laws of 1823, p. 21§, §11. '2 R. S. 174, § 43. 254 THE LAW OF MORTGAGES. Section 132 of the Code provides that in an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, or whenever a warrant of attachment under chapter four of title seven, part second of the Code, shall be issued, or at any time afterwards, the plaintiff or a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief, at the time of filing his answer or at any time afterwards, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the property in that county af- fected thereby, and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judg- ment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same. From the time of filing, only, shall the pendency of the action be con- structive notice to a purchaser or incumbrancer of the property affected thereby ; and every person whose conveyance or incum- brance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the' action. For the purposes of this section, an action shall be deemed to be pend- ing from the time offiling such notice ; provided, however, that such notice shall be of no avail unless it shall be followed by the first publication of the summons on an order therefor, or by the personal service thereof on a defendant within sixty days after such filing. And the court in which the said action was commenced may, in its discretion, at any time after the action shall be settled, discontinued or abated, as is provided in section number 121, on application of any person aggrieved, and on good cause shown, and on such notice as shall be directed or approved by the court, order the notice authorized by this sec- tion to be canceled of record by the clerk of any county in whose office the same may have been filed or recorded ; and such cancellation shall be made by an indorsement to that effect on the margin of the record, which shall refer to the order, NOTICE OF PENDENCY OF ACTION. 255- and for which the clerk shall be entitled to a fee of twenty-five cents. This section of the Code, as it now stands, is the result of numerous amendments. Prior to 1851, the notice could be filed only at the time of commencing the action. Prior to 1857, the rule did not apply to attachment proceedings. Prior to 1858, a grantee whose deed was not recorded, had to be discovered by the plaintiff and made a party to the action, 1 but subsequent to that time, and now, every person receiving or recording his conveyance after the filing of such notice, even though it be a few hours only, is deemed a subsequent purchaser and incum- brancer ; he stands in the same position as if he had actually purchased the land, or actually received his incumbrance after the filing of such notice, whatever the fact may be, and he is bound by such proceedings to the same extent as if he were a party to the action ; that is, he is foreclosed and barred of all rights in the subject-matter of the controversy. 2 Prior to 1862, if the notice were in proper form and had been filed in an ac- tion in conformity with the provisions of the statute, the court had no power to order it to be taken from the files. 3 Prior to 1862, there had been doubt as to whether the action could be said to be pending until after a summons had been served, 4 and the amendment of that year not only settled that doubt, but also fixed a limit beyond which the notice would not operate without the action being prosecuted. Form and Contents of the Notice, and the Filing thereof. In an action ,f or the foreclosure of a mortgage, the notice of the pendency of the action must contain the following partic- ulars : 1. The names of the parties to the action ; 2. The object of the action ; 3. The description of the property in that county affected by the action ; 4. The date of the mort- ' Hall v. Nelson, 23 Barb. 88 ; a. o. 14 How. 32. 2 Stern v. O'Connell, 35 N. Y. 104. 3 Pratt v. Hoag, 12 How. 215 ; s. c. 5 Duer, 631. * Burroughs v. Reiger, 12 How. 171; The Farmers' Loan &, Trust Co. v. Dick- son, 17 How. 477 ; Butler v. Tomlinson, 38 Barb. 641 ; but see Stern v. O'Connell, 35 N. Y. 104. 256 THE LAW OF MORTGAGES. gage ; 5. The parties thereto ; and 6. The time and place of recording the same. 1 It is not necessary that all of these particulars be described with minuteness or entire accuracy. Thus, when a notice of the pendency of an action against John F. Fowler was filed, this was held sufficient to put a purchaser from John Fowler upon inquiry and charge him with notice ; 2 so, where the notice stated that the mortgaged premises were situate in the county of Erie, and also stated that the mortgage was recorded on a certain day, but did not state the office or county in which the mortgage was recorded, this was held to be a substantial com- pliance with the statute, since the mortgage was presumably recorded in the office of the clerk of the county in which the mortgaged premises were. 3 It has been said that it is within the power of the court to amend the notice, 4 but this may be doubted, except in so far as to make formal corrections. A new notice may be filed at any time, but an amendment could not be ordered which would dis- turb the vested rights of third persons. Apart from the terms of the statute, the court has no power to remove the notice of the pendency of the action from the public records, and this can only be done when the action is either settled, discontinued, or abated. 5 The notice which is -filed is a substitute for actual notice, and it takes the place of the presumption of notice, which the statute destroys ; and the impropriety of depriving a litigant of an opportunity to notify the world that he makes certain claims, and that he has sought the aid of a court of justice in order to enforce them, is quite apparent. Upon general principles, it would be a hardship to cancel a notice which has been regularly filed, except upon the consent or because of the default of the person who filed it. By the express provision of the statute, the notice of lis pendens is required to be filed " at the time of filing the com- 1 Code, § 132. ! Weber v. Fowler, 11 How. 459. 3 Potter v. Rowland„8 N. Y. (4 Bold.) 448. 4 Vanderlieyden v. Gary, 38 How. 367. 6 Pratt v Hoag, 12 How. 215 ; 8. c. B Duer, 631. NOTICE OF PENDENCY OF ACTION. 257 plaint or at any time afterwards." Before the passage of the statute of 1823, the riling of the bill was necessary to constitute a notice to a subsequent purchaser, the principle being that the record should contain everything necessary for his information ; the rule is still the same, and the decisions are uniform that the notice has no force or effect until the filing of the com- plaint. 1 It has been said that if the notice be filed before the filing of the complaint, it will commence to operate when the complaint shall be filed. This may be a fair rule, but it is not perceived how it can be deduced from the statute. The time of filing is when the notice is given to the clerk, and the statute expressly directs that it should be " at the time of filing the complaint or at any time afterwards." Unless the fact that the notice remains in the hands of the clerk constitutes a new filing, it seems quite plain that a notice filed at a time when there was no warrant for filing it, could not become operative because an event subsequently happened which would have rendered a filing of it proper. 3 It has been held that a notice of Us pendens becomes void if the action be not diligently proceeded with, and a delay of eight years was adjudged to have this effect. Like an execution which has been long disregarded, it is said to become dormant. 3 This rule is, however, open to grave objections, and may be doubted. The safer course, where the plaintiff dismisses his complaint in a foreclosure suit, as against a judgment creditor who has a subsisting lien, or leaves his name out of the complaint by amendment, is to file a new notice of the pendency of the suit against the remaining parties ; so as. to render it perfectly cer- tain that the judgment creditor, whose name is' left out after the filing of the first notice, will be barred by the foreclosure and sale. And when the complaint is amended by adding new parties, after the filing of the notice of lis pendens, a new notice is absolutely necessary to bar the rights of the judgment 1 Leitch v. Wells, 48 N. Y. 685; Stem v. O'Connell, 35 N. Y. 104. 2 Examine Burroughs v. Reiger, 12 How. 171 ; Tate v. Jordan, 3 Abb. 392; Benson v. Sayre, 7 Abb. 472, n. ; Farmers' Loan & Trust Co. v. Dickson, 9 Abb. 61; s. o. 17 How. 477; Butler v. Tomlinson,38Barb. 641. 8 Myrick v. Selden, 36 Barb. 15. 17 258 THE LAW OF MORTGAGES. creditors of such new parties, as well as to make the amended bill constructive notice to subsequent purchasers from such new parties. 1 If the complaint be amended by making new parties, the plaintiff's attorney will be unable to make the affidavit or furnish ^he proof required by Rule 72, unless he file an amended notice, for he is required to show that a notice of the pendency of the action, " containing the names of the parties thereto," had been filed twenty days before the application for judgment. But it seems that this is only necessary as to the added parties, and that grantees from the original parties to the action would be bound by the original notice. 3 It is required by the 72d Court Eule that, in all foreclosure cases, the plaintiff, when he moves for judgment, must show by affidavit, or by the certificate of the clerk of the county in which the mortgaged premises are situated, that a notice of the pendency of the action, containing the names of the parties thereto, the object of the action, and a description of the prop- erty in that county affected thereby, the date of the mortgage, and the time and place of recording the same, has been filed at least ■twenty days before such application for judgment, and at or after the time of filing the complaint, as required by section 132 of the Code of Procedure. This is a mere rule of practice, and does not affect the validity of the judgment. If no proof of the filing of the notice is furnished, the judgment-is irregular, but not void. 3 Where a proper notice of lis pendens is in fact filed, a defect in the affidavit of filing may be disregarded or amended. 4 Who are Bound oy the Notice of the Pendency of the Action. The filing of a notice of lis pendens is constructive notice of the action to subsequent purchasers and incumbrancers of the property, and as to them, it is a substitute for actual notice. 6 1 Per Ch. Walworth, in Curtis v. Hitchcock, 10 Paige, 399; Clark v. Havens, Clarke, B60. 3 Waring v. Waring, 7 Abb. 472. 3 Potter v. Rowland, 8 N. Y. (4 Seld.) 448 ; Curtis v. Hitchcock, 10 Paige, 399. 4 White v. Coulter, 1 Hun, 367 ; s. o. 3 N. Y. Sup. (T. & C.) 608. » Hall y. Nelson, 14 How. 32 ;■ s. o. 23 Barb. 88. NOTICE OF PENDENCY OF ACTION. 259 Constructive notice is, in its nature, nO more than evidence of notice, the presumption of which is so violent that the court will not even allow of its being controverted. 1 A person having actual notice of the pendency of the action is bound by the judgment rendered in it ; but what is sufficient notice is a point of some nicety. It has been said that the notice must be so clearly proved or necessarily inferred, as to make it fraudulent for the purchaser to take a conveyance 'in prejudice to the known title of another ; 3 and, on the other hand, whatever is sufficient to put a party on inquiry is considered in equity as conveying notice. 3 When actual notice is alleged, the question of notice is, in general, a mixed question of law and fact. A person who parts with nothing upon receiving a convey- ance of property, concerning which an action is pending, cannot be injured by not receiving notice of it; and such a one is bound by the result of the action, without notice either actual or constructive. 4 The notice of lis pendens is notice to a purchaser, pendente lite, of any portion of the premises affected by the action, pre- cisely as the record of a conveyance made by the defendant would be. It is not notice to prior incumbrancers, and as to prior mortgagees, even though made parties, and all other persons whose rights are superior to the claims of the plaintiff, the notice is of no effect. 5 So, a purchaser by contract in pos- session is not chargeable with notice of Us pendens, so as to render payments by him to. the vendor invalid. 6 And upon a like principle, a person who claims title under a sale for taxes is not bound by the, notice. 7 1 Story's Eq. Jur. § 399. * Wiswall v. McGowan, Hoff. Ch. 125, 3 Pitney v. Leonard, 1 Paige, 461 ; Hanley v. Cramer, 4 Cow. '111. 4 Leavitt v. Tylee, 1 Sandf. Ch. 207. 5 Stuyvesant v. Hone, 1 Sandf. Ch. 419 ; s. o. affi'd sub nom. Stuyvesant y. Hall, 2 Barb. Ch. 151; The People ex rel. Tremont Bank v. Connolly, 8 Abb. 128; Chapman v. West, 11 N. Y. 125; affi'g s. o. 10 How. $61, sub nom. phap- man v. Draper. 6 Parks y. Jackson, 11 Wend. 442 ; Moyer v. Hinman, 13 N. Y. 180 Smith v. Gage, 41 Barb. 60 ; Dwight v. Phillips, 48 Barb. 116. 7 Becker v. Howard, 4 Hun, 359. 260 THE LAW OF -MORTGAGES. The notice being proper in form and properly filed is con- structive notice to purchasers of the property from the defend- ant, who, purchasing pendente lite, are bound by the judgment. 1 An assignee in bankruptcy, appointed in proceedings commenced subsequent to the filing of the notice, is bound by it, 2 and the notice is practically as effectual in preventing a transfer of the property by the defendant as an injunction could be. s The notice arising from a notice of lis pendens, and a com- plaint filed in an action, is notice of what those papers contain, and of nothing more. It cannot be extended beyond the prop- erty which is the subject of the suit, and the specific property which is sought to be reached must in some way be desig- nated. 4 If the court has no jurisdiction, the notice cannot operate, since the only information which could be derived from the papers would be, that a suit had been commenced which could not terminate in any valid judgment. 5 Only persons who are not parties to the action, and who claim under parties, are affected by the notice of lis pendens, and they only can take advantage of an omission to file it. 6 Indexing the Notice. By chapter 53 of the Laws of 1864, the clerks of the various counties are required to'index and record the notices of lis pendens filed with them, and it is also provided that " the party filing such notice shall indicate at the foot thereof the names of such of the defendants as it shall be necessary to insert in such index." The statute makes the pendency of the action constructive notice " to a purchaser or incumbrancer of the property affected thereby," " from the time of filing only." 7 In the absence of express adjudication, it is believed that 1 Zeiter v. Bowman, 6 Barb. 133; Griswold v. Miller, 15 Barb. 620 ; Harring- ton v. Slade, 22 Barb. 161. 2 Cleveland v. Boerum, 23 Barb. 201; affi'd 24 N. Y. 613; Griswold t. Fowler, 6 Abb. 113. 8 Stevenson v. Fayerweather, 21 How. 449. 4 Griffith v. Griffith, Hoflf. Oh. 153 ; s. o. affi'd 9 Paige, 815. 6 Carrington v. Brentz, 1 McLean, 167. " White v. Coulter, 1 Hun, 35T ; s.-o. 3 N. Y. Sup. (T. & C.) 608. 7 Code, § 132. NOTICE OF PENDENCY OF ACTION. 261 " the names of such of the defendants as it shall be necessary to insert in said index," are the names of snch of the defendants as conld give a title to a purchaser or incumbrancer of the property affected thereby, which would include only the names of those persons who had a transferable interest in the equity of re- demption. This would include the names of subsequent mort- gagees, whose assignees are bound by the lis pendens? and the names probably of judgment creditors, and until it is adjudi- cated that a subsequent assignee of a junior mortgagee or judgment creditor is concluded by such a notice when, by the act of the plaintiff, the indexing is so done that the name of such person does not appear, it would be the safer practice to index against the names of all of the defendants holding any interest in, or lien upon the property affected by the action. Consequences of Omission to File Notice of the Pendency of the Action. If no notice of lis pendens be filed in the action, the judg- ment cannot be deprived of its effect as against persons claiming from or through the defendants after judgment. The only office of a notice of lis pendens is to give notice of the pend- ency of the action so as to affect persons who may deal with the defendants in respect to the property involved, before final judgment, and thus bind them by the judgment in the same manner as if they had been made parties to the action. Neither the Revised Statutes nor the Code relate to the effect of a judgment, or to the rights of parties claiming under a title acquired after judgment, but only to those who take during the pendency of the action. Section 132 of the Code provides that the pendency of the action shall be constructive notice to pur- chasers, from the time of the filing of the notice only, and that purchasers shall be bound by all proceedings taken after the filing of such notice, to the same extent as if they were made parties to the action. This is the whole scope and object of the notice. It has no relation to titles acquired after judgment. It never was pretended that, any notice was necessary to 'render 1 Hovey v. Hill, 3 Lans. 16Y. 262 THE LAW OF MORTGAGES. the judgment effectual as against parties claiming under the defendant, by transfer subsequent to the judgment. The judg- ment disposes of the rights of the parties, and is a matter of public record. Its effect cannot be impaired by any subsequent transfer by the defendant. He is concluded by it, and his grantee cannot be in any better situation than the party from whom he obtained his right. 1 1 Per Rapallo, J., in Sheridan v. Andrews, 49 N. T. 478 ; Campbell v. Hall, 16 N. T. 679 ; Totten v. Stuyvesant, 3 Edw. 600. CHAPTER XXI 1. PRACTICE IN ACTIONS TO FORECLOSE MORTGAGES Nature of the Action. The Revised Statutes provide that whenever a bill shall be filed for the foreclosure and enforcement of a mortgage, the court shall have power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient, to discharge the amount due on the mortgage, and the costs of suit. 1 The enactment was, however, declaratory of the law, 3 and the practice in this State has always been to sell the property in the enforcement of the Hen, and not to foreclose the equity of redemption. 3 The action therefore is not, properly speaking, an action to foreclose, but rather, as the statute expresses it, to enforce the mortgage. It is governed by the general rules of practice under the Code, the consideration of the most of which does not properly fall within the scope of this work, it being intended to diseuss only those rules which especially 1 concern the rights and remedies of parties to mortgages. As one result of the proposition that an action to foreclose partakes of the nature of a suit in equity, the parties have no legal right to have the issues which may be raised by the plead- ings tried by a jury. In equitable actions it has always rested in the discretion of the court either to ask the aid of a jury to inform the conscience of the court, or to decide the case with- out such aid. 4 1 2 R. S. 191, § 151. 2 Bolles v. Duff, 43 N. Y. 469. 3 Mills y. DenDia, 3 Johns. Ch. 367. 4 Knickerbocker Life Ins. Co. v. Nelson, 8 Hun, 21. 264 THE LAW OF MORTGAGES. What Courts have Jurisdiction. An action to foreclose a mortgage may be brought in tbe Supreme Court, which succeeds to the powers of the old Court of Chancery, and has a general jurisdiction both at law and in equity. 1 Such an action is a local action, and the venue must be laid and the trial must be had in the county in which the mortgaged premises, or some part thereof, are situated. 2 it cannot be tried, either in whole or in part, in any other county. 3 Jurisdiction to foreclose a mortgage on real property situated within their respective local limits is also vested in the Court of Common Pleas for the city and county of New York, 4 the Superior Court of the city of New York, 5 the Superior Court of Buffalo, 8 the City Court of Brooklyn 7 and the county courts. 8 The Mayor's Court of the city of Hudson and the Recorder's Courts of the cities of Utica and Oswego have also such juris- diction under the Code of Procedure, 9 and it is not disturbed by the Code of Remedial Justice, which is to take effect May 1, 187Y. 10 Service of Summons. The jurisdiction of the respective local courts- does not de- pend upon the place where the process is served, but upon the place where the real estate affected by the foreclosure is situ- ated ; and when a court acquires jurisdiction in this way the action may be commenced by service of the summons in any of the counties of this State, or by publication against non-resident defendants. 11 I Const, of 1869, art. 6, § 6. ! Code of Proc. § 123. 3 Gould v. Bennett, 59 N. Y. 124. ' * Code of Proc. § 33 ; Code of Rem. Just. § 263. 5 Code of Proc. § 33 ; Code of Rem. Just. § 263. ' Laws of 1873, c. 239 ; Code of Rem. Just. § 263. ' Laws of 1873, c. 239 ; Code of Rem. Just. § 263. 8 Code of Proc. § 30 ; Code of Rem. Just. § 340 ; Arnold v. Rees, 18 N. Y. 57; s. a. 17 How. 35; overruling Hall v. Nelson, 23 Barb. 88. 9 § 33. 10 §§ 2, 4. II Porter v. Lord, 4 Duer, 682 ; s. c. 4 Abb. Pr. 43 ; s. o. 13 How. 254 ; Bates v. Reynolds, 1 Bosw. 685; Varian v. Stevens, 2 Duer, 635; Spyer v. Fisher, 5 J. & S. 93, 101; see Code of Rem. Just. § 278. ACTIONS TO FORECLOSE MORTGAGES. 265 Where one or more of the defendants cannot be found with- in this State, the summons may be served upon such defendants by publication in two newspapers, and if their places of resi- dence are known, by depositing a copy of the summons and complaint in the post office, directed to them. 1 If any party or parties having any interest in or lien upon the mortgaged premises are unknown to the plaintiff, and the residence of such party or parties cannot, with reasonable dili- gence be ascertained by him, service of the summons upon such parties may be made by publication in the State paper and a newspaper published in the county where the premises are situ- ated. 2 Such a case would arise if the owner of the equity of redemption should die, and it should remain an uncertain or a disputed question as to who were his heirs at law. If service of the summons, in such a case, should be made under the terms of the statute, it would bar all parties in interest, even though they might have been infants. 3 It has sometimes been the prac- tice to foreclose by advertisement in order to cut off unknown heirs, since the statute directs the notice of sale to be served on the personal representatives of the deceased mortgagor, and does not require it to be served upon th« heirs at law ; but a more satisfactory title may be made by foreclosing by action and serving the summons in the way indicated. Prior to the Code, service of a subpoena upon a married wo- man in a chancery suit was only necessary when the proceeding was against her in respect to her separate estate, in which her husband was only a nominal party ; and not where the estate was in the husband, the wife having merely an inchoate right of dower. In the latter case it was the duty of the husband to put in a joint answer for himself and wife. If the wife refused to answer, the bill would be taken as confessed against her unless she applied and obtained an order to answer separately. 4 This rule has not been changed by the Code, and it is not necessary to serve the wife of the owner of the equity of redemption with the summons in an action" to foreclose a mortgage in order to 1 Code, § 133. 2 Code, § 135. 3 Wheeler v. Scully, 50 N. Y. 66?. 4 Ferguson v. Smith, 2 Johns. Ch. 139 ; Leavitt v. Cruger, 1 Paige, 421. 266 THE LAW OF MORTGAGES. cut off her inchoate right of dower ; service upon the hushand is sufficient. 1 It will be observed that this rule only affects the service of the summons ; if the wife is not a party to the action her inchoate right of dower will not be barred. 2 Appearance of Defendants. A voluntary appearance by the defendant is equivalent to personal service of the summons upon him. 3 The appearance is commonly by attorney, though an appearance in person is always proper. Where a solvent attorney appears for a defendant, though ■ without authority, the defendant will be bound after judgment. 4 There are dicta to the effect that such an appearance will be- come binding as soon as the opposite party has acted upon it, but it cannot be regarded as settled by authority that any ap- pearance before judgment, or by an attorney who is not of sufficient pecuniary ability to answer for his acts, will be conclu- sive upon the party. It has been held that even a forged no- tice of appearance, executed without authority from the client or from the attorney whose name is used, is sufficiently valid to render the judgment apparently regular, and that such a judg- ment cannot be attacked collaterally. 1 " A party to the action may serve a notice of appearance at any stage of the action, either before or after judgment, and he will then be entitled to notice of all subsequent proceedings. 7 The fact that the plaintiff or any other party to the action died subsequent to the entry of the judgment, will not make it necessary to revive the action as against the legal representatives 1 Foote v. Lathrop, 53 Barb. 183 ; s. c. affi'd 41 ST. T. 358; Eckerson v. Voll- mer, 11 How. 42 ; Lathrop v. Heacock, 4 Lans. 1 ; AVhite v. Coulter, 1 Hun, 357 ; s. o. 3 N. Y. Sup. (T. & C.) 608 ; Watson v. Church, 3 Hun, 80 ; s. c. 5 N. Y. Sup. (T. n such lands for the purchase money, it will not be any defence to an action to foreclose the mortgage to show that there was considerably less land than was supposed, if there was no fraud or misrepresentation by the grantor. 2 What Counter-claims are Permissible in Foreclosure Cases. An action to enforce a mortgage, although denominated an action for the foreclosure of a mortgage, is in law and in fact an action for the recovery of the amount owing on the obliga- tion of the mortgagor, or other person liable for the debt ; first, by an order for the sale of the premises mortgaged for that purpose, and the application of the avails to the sale to that purpose, and then for a judgment against him for the de- ficiency. It is not only an action against the mortgagor upon his contract to pay the amount specified in his bond, to which an offset might have been pleaded before the Code, 3 but one in which under the Code a several judgment may be had as be- tween the plaintiff and the person liable for the debt, and hence is subject to a counter-claim of any other cause of action aris- ing also on contract which the person so liable has against the plaintiff at the time of the commencement of the action. 4 1 Champlin v. Laytin, 6 Paige, 189 ; s. c. affi'd 18 Wend. 407. * Northrop v. Sumney, 27 Barb. 196. 3 2 R. S. § 1, sub. 1. ' Code, § 150; National Fire Ins. Co. v. McKay, 21 N. Y. 191, 196 ; Hunt v. Chapman, 51 N. Y. 555 ; Bathgate v. Haslrin, 59 N. Y. 533 ; Chapman v. Robertson, 6 Paige, 627 ; Holden v. Gilbert, 7 Paige, 208. 296 THE LAW OF MORTGAGES. A counter-claim when established must, in some way, qualify or defeat the judgment to which a plaintiff is otherwise entitled. In a foreclosure suit a defendant who is personally liable for the debt, or whose land is bound for the lien, may properly introduce an offset to reduce or extinguish the claim ; ] but where his personal liability is not in question, and where he disclaims all interest in the mortgaged premises, he cannot demand a judgment against the plaintiff on a note, a bond, or a covenant. 2 It has also been said that, where the defendant is not liable for the debt, his right to a counter-claim is limited to matters arising out of the subject of the action ; s but this would not apply where the defendant owning the equity de- sired to set up a claim which he had against the plaintiff, in order that his demand might offset a portion of the debt charged upon his estate. 4 In order to be permissible under the Code, a connter-elaim must be one existing in favor of a defendant and against a plaint- iff, between whom a several judgment might be had in the ac- tion. 5 Where the debt is evidenced by the 'joint bond of two of the defendants, one of whom is as between themselves a surety for the debt, and the mortgaged premises being the property of the principal debtor, 'a claim due from the plaintiff to the prin- cipal debtor may be used to offset the amount due upon the mortgage. 6 In such a case the fact that one of the obligors was surety for the other may be shown by extrinsic evidence, and in equity this can always be done to let in a defence or to establish a right founded upon that relation. 7 The several judgment which the statute requires may be had, may be a judgment for a part of the relief asked for, as to extinguish the right of one of the defendants in the land ; that a joint personal judgment may 1 Lathrop v. Godfrey, 3 Hun, T39 ; s. o. 6 N. T. Sup. (T. & C.) 96. ' National Fire Ins. Co. v. McKay, 21 N. Y. 191. 3 Agate v. King, IT Abb. 159. *. * Bathgate v. Haskin, 59 N. T. 533. 6 Code, § 150. 6 Bathgate v. Haskin, 59 N. T. 533 ; Holbrook v. The Receivers of the Amer- ican Fire Ins. Co. 6 Paige, 220 ; Ex parte Hanson, 12 Ves. 346. ' Bathgate v. Haskin, 59 N. Y. 533 ; Artcher v. Douglass, 5 Den. 509 ; Barry v. Ransom, 12 N. Y. 466. DEFENCES IN ACTIONS TO FORECLOSE. 297 also be given does not exclude the allowance of the counter- claim. 1 There can be no doubt but that, if the mortgagee be guilty of a fraud whereby the mortgagor is induced to purchase a de- fective title and to pay for it with a mortgage, the mortgagor may recoup in the foreclosure suit to the extent of his actual damage, and if that shall equal or exceed the amount of the mortgage, it will constitute an entire defence. 2 If the mortgage be given for a portion of the purchase money, the grantee who has assumed the payment of it, may interpose a cause of action for damages for false representations as to the character and convenience of the property made to the mort- gagor to induce him to make the purchase, as a counter-claim ; and he may also be allowed to show that an assignment of the bond and mortgage from the mortgagee was only colorable, and that the mortgagee was still the equitable owner. 3 If a mortgage be made to secure future advances under an agreement by the mortgagee to make the advances, and only a portion of the money is advanced, the mortgage is a lien only to the extent. of the amount actually advanced, and, though the mortgagor be injured seriously by failing to receive the balance of the money, he can recover only nominal damages by way of counter-claim. 4 But it is said that damages sustained by the mortgagee's refusal to release portions of the premises on sales by the mortgagor, may be matter of equitable set-off. 5 Before the Code it was held to be proper for a defendant to set up and maintain by a cross-bill, an equitable right to have another security in the hands of the plaintiff first enforced, before resorting to a sale of the mortgaged premises. 6 If the necessary parties were before the court the judgment might do equity in the premises, as for example by directing the ' Bathgate v. Haslrin, 59 N. T. 533. 2 Grant y. Tallman, 20 N. T. 191 ; Lathrop v. Godfrey, 6 N. T. Sup. (T. & C.) 96 ; s. c. 3 Hun, 739 ; Abbott v. Allen, 2 Johns. Ch. 519 ; Ludington v. Slauaon, 6 J. & S. 81. ' 3 Lathrop y. Godfrey, 3 Hun, 739 ; s. o. 6 N. Y. Sup. (T. & C.) 96 ; contra, Eeed v. Latson, 15 Barb. 9. ' Dart y. Me Adam, 27 Barb. 187. 6 Warner v. Gouverneur, 1 Barb. 36. King v. McVickar, 3 Sandf. Ch. 192. 298 THE LAW OF MORTGAGES. order in which different parcels of land may be sold, but, if other parties were necessary, the cross-bill could not be, used to convert the original action into a distinct suit relative to other lands, or become the foundation of a decree concerning matters not embraced in the original suit. 1 Bat there might be a decree in such a case that, after satisfying the complainant's claims out of the mortgaged premises, the defendant should be subrogated to the rights of the complainant under the collateral security. 3 It is believed that under the Code the same relief could be ob- tained in proper cases by means of a counter-claim. 3 W. hen a Grantee may Defend who has Taken Subject to the Mortgage. When, in a conveyance of land, it is described as being sub- ject to a mortgage, the question may be raised as to whether, and to what extent, this will limit the grantee in questioning the validity or the amount due on said mortgage. It is settled that such a clause in the deed operates as a waiver of the defence of usury and as a provision made by the mortgagor for the pay- ment of the usurious debt, which he is not suffered at any time afterward to question, 4 but there is some conflict in the decis- ions relative to its effect in shutting off other defences. In Russell v. Kinney (1 Sandf. Ch. 34), it was held that such a clause in a deed operates as an admission of the existence of the mortgage, and as subjecting the grantee to its force exactly as it is in truth. , If it is a mortgage with a condition or defeasance contained in another writing, or if it is partly paid, the grantee is entitled to the benefit of the defeasance or the payment, and his admission by accepting the deed is not in- consistent with his availing himself of such defence. In other words the clause merely operates to qualify the covenants of the grantor as to the title. In Jewell v :■ Harrington (19 Wend. 471), the deed con- 1 Galatian v. Erwin, Hopk. 48 ; affi'd, 8 Cow. 361. ' Kingv. McVickar, 3 Sandf. Ch. 192. 8 Currie v. Cowles, 6 Bosw. 453 ; Cramer v. Benton, 4 Lans. 291 ; Gleason v. Moen, 2 Duer, 639 ; Leavenworth t. Packer, 52 Barb. 132. * Hartley v. Harrison, 24 N. Y. 170 ; see ante, p. 211. DEFENCES IN ACTIONS TO FORECLOSE. 299 veyed the premises " subject, nevertheless, to the right of dower of Chloe Jewell, who was the widow of Samuel Nash, deceased, who was the former proprietor of the above described prem- ises," and the court held that the grantee was not estopped from contesting the plaintiff's claim for dower. In Hartley v. Tatham (26 How. 158; s. c. 1 Eobt. 246), 1 Jewell v. Harrington (supra) was cited and approved, and the princi- ple of the case was applied to the defence of part payment as against a mortgage recited in a deed under which the defend- ant claimed. It was not necessary to the decision, however, for in Hartley v. Tatham the part payment had been made sub- sequent to the acceptance of the conveyance in which the lien of the mortgage was recognized. In Lester v. Barron (40 Earb. 297), a deed contained a clause to the effect that the grantee assumed all liability in relation to a party wall, and it was held that the grantee merely assumed such legal liability as existed against his grantor in respect to such wall. In Reed v. Latson (15 Barb. 9), it was held upon the other hand that one who purchases land expressly subject to a mort- gage cannot set up against the mortgage that, prior to the sale, it had been extinguished by a merger. In Freeman v. Auld (44 N . Y. 50 ; reversing a.- c. 25 How. 327 ; 44 Barb. 14 ; 37 Barb. 587), the defendants had had the full amount of the mortgage deducted from their purchase money and they took expressly subject to it. The court said that the grantors had the right, which no purchaser from them could lawfully gainsay, to pay or provide for the payment of the full amount specified in the mortgage, and that the grantee taking subject to the mortgage must pay it if he has agreed to do so, and if not, he must allow the lands conveyed subject to it to be applied to its payment. The same rule is affirmed in Bitter v. Phillips (53 E". Y. 586). If mortgaged land be conveyed by an instrument which transfers all of the interest of the mortgagor without specially designating the mortgage security or affirming its validity, as by sale under an execution or upon the foreclosure of a junior 1 Hartley v. Tatham, affi'd 1 Keyes, 222. 300 THE LAW OF MORTGAGES. incumbrance, the purchaser may set up any defence to the mortgage which would have been available to the mortgagor. 1 The following propositions appear to reconcile the cases and to be sustained by reason and by authority : 1. If the mortgage be without consideration, in whole or in part, as between the mortgagee and the mortgagor, the grantee of the mortgagor will not be precluded from defending against the mortgage on the mere ground of an estoppel created by the subject clause in the deed. The reason of this is that an estoppel is unavailing except as between the parties to the deed and their privies in blood or estate. To a stranger it is wholly unavailable. 2 2. If the grantor is indebted on the mortgage in such a way that if he paid it he could not afterwards recover the money, as, for instance, if the debt be usurious or if it be barred by the statute of limitations, the conveyance of the land subject to the lien shuts off any defence as effectually as payment would, and operates as an appropriation of the land to pay the debt. 3. It is competent for the grantor to create a lien upon the land in favor of any person, either with consideration as between him and such person or without any consideration whatever, and if it is part of his agreement with the grantee that this lien shall be paid, it is not competent for the grantee to question claims by the recognition of which, and in express subordination to which, he acquired his title. This is a question of agreement between the grantor and grantee, and is to be determined by the lan- guage of the conveyance, which is presumed to show the agree- ment between the parties, but which is subject to correction by parol evidence of the real intention and bargain, in cases of fraud or mistake. 1 Nichols T. Hill, 6 N. Y. Sup. (T. & C.) 335 ; s. o. less fully, sub nom. Nichols v. Iremonger, 3 Hun, 609. 8 Jackson t. Bradford, 4 Wend. 619 ; Jewell v. Harrington, 19 Wend. HI. CHAPTER XXIV. RECEIVERS OF RENTS. When a Receiver will he Appointed. The right of entry by the mortgagee having been abolished, the mortgagor is, both at law and in equity, entitled to the com- plete enjoyment of the mortgaged premises and of their rents and profits until the debt is due, unless such rents are expressly pledged for the payment of the debt. 1 If no proceedings are taken for the appointment of a receiver, his right to the rents continues until it has been divested by a foreclosure sale, and until the purchaser has become entitled to possession under the sheriffs deed. 3 Where, however, the security is insufficient and the mortgagor or other person who is personally liable for the payment of the debt is insolvent, the morjgagee may apply for a receiver of the rents and profits of the 1 mortgaged premises which have not yet been collected, and this relief will be granted unless the person in possession shall give security to account for such rents in case there shall be a deficiency. 8 By the appointment of a receiver the mortgagee obtains an equitable specific lien upon the rents unpaid by the tenant, as well those which are accrued at the time of the appointment as those which become due subsequently, to pay any anticipated 1 Bant of Ogdensburgh v. Arnold, 5 Paige, 38. a Astor v. Turner, 11 Paige, 436 ; Claaon v. Corley, 5 Sandf. 447; Mitchell y. Bartlett, 51 N. Y. 447. 3 Sea Ins. Co. v. Stebbins, 8 Paige, 565*; Howell v. Ripley, 10 Id. 43 ; Astor v. Turner, 11 Id. 436 ; Frelinghuysen v. Colden, 4 Id. 204 ; Shotwell v. Smith, 3 Edw. 688 ; Warner v. Gouverneur, 1 Barb. 36 ; Syracuse Bank v. Tallman, 31 Id. 201. 302 TEE LAW OF MORTGAGES. deficiency, 1 but he cannot call upon the owner of the equity of redemption to refund rents which the latter had collected and received before the appointment of a receiver, neither can he obtain rents which a junior mortgagee had collected by superior diligence in procuring the appointment of a receiver of the same rents in a suit to which he was not a party. 2 The right to this relief does not result from the relations of the parties, but from equitable considerations alone. It is not a matter of strict right, and each application is addressed to the sound discretion of the court. 3 A receiver will not be appointed where the property is of sufficient value to pay the debt, 4 nor, in general, if the mortgagor is solvent. 5 In estimating the price which the property is likely to produce on a sale, the amount of rents, fixing as they do its value as an investment, is, in populous cities especially, a fair test, 6 though much may depend upon other circumstances. It has also been said that a receiver will not be appointed if the validity of the mortgage is impeached on probable grounds. 7 If a part only of the mortgage debt is due, and the mort- gaged premises are so situated that they may be sold in parcels, a receiver will not be appointed if a sale of part of the land will produce enough to satisfy the portion of the debt th«n due ; 8 but if the premises are so situated that they must be sold entire, and theyare an inadequate security for the mort- gage debt, and the^^rsonal security is worthless, a receiver may be appointed of" the rents of the entire property. 9 The appointment of a receiver is made in order that the rents of the property which is pledged for the payment of the debt may not be received by an insolvent mortgagor, leaving the mortgagee to suffer a loss from the delay in the proceedings 1 Lofsky v. Manjer, 3 Sandf. Ch. 69. 3 Howell T. Ripley, 10 Paige, 43 ; Posst v. Dorr, 4. Edw. 412. a Syracuse Bank v. Tallman, 31 Barb. 201. 4 Shotwell v. Smith, 3 Edw. 688. 6 Jenkins v. Hinman, 5 Paige, 309 ; Syracuse Bank y. Tallman, 31 Barb. 201. " Shotwell v. Smith, 3 Edw. 588. ' Leahy v. Arthur, 1 Hogan, 92 ; Darcy v. Blake, 1 Molloy, 247 ; Shepherd v. Murdock, 2 Molloy, 231, 531. 8 Bank of Ogdensburgh v. Arnold, 5 Paige, 38. 9 Quincy v. Cheeseman, 4 Sandf. Ch. 381. RECEIVERS OF RENTS. 303 necessary to determine the rights of the parties. Special cases might arise where the appointment of a receiver ought to be made, even though the mortgagor were solvent, as, for in- stance, if the rents Were being collected by an insolvent grantee who had assumed the payment of the debt, or by a solvent person who had assumed no such personal liability, for the rights of all the parties are before the court, and the mortgagor is as much entitled to protection as the mortgagee. 1 A receiver may even be appointed on the application of the mortgagor, whether he be a defendant in an action to foreclose, or a plaint- iff in an action for an accounting, the mortgagee or a grantee being in possession and insolvent or committing waste, and it appearing probable that the rents and profits will be lost. 2 Ordinarily where a mortgagee is in possession, and anything remains due to him, he will not be disturbed in his possession by the appointment of a receiver ; and particularly is this so when the mortgagor is responsible, and is able to account for and pay any excess of rents and profits after payment of his debt, or will give security to do so. If he will swear that anything remains due, the court will not try the question of indebtedness upon affidavits, and a receiver will not be ap- pointed. 3 The rule that a receiver will not be appointed as against a mortgagee in possession is applied where the mortgagee in possession is - the first mortgagee whose claim is unsatisfied, and the parties applying for the receiver hold liens subsequent to his mortgage. The rule has not been applied against the holder of a prior mortgage, and in favor of a subsequent mort- gagee, if there be any doubt as to the mortgaged premises being adequate security for the first mortgage, interest on it and taxes. The subsequent mortgagee is entitled to a receiver if the first mortgagee be not in possession, but without preju- dice to the latter taking possession ; but if the first mortgagee be in possession, he must redeem. 4 1 Frelinghuysen v. Colden, 4 Paige, 204. 2 Bolles v. Duff, 35 How. 481 ; Williams v. Robinson, 16 Conn. 517, 524. 3 Bolles v. Duff, 35 How. 481 ; Quinn v. Brittain, 3 Edw. 314; Patten v. The Accessory Transit Co. 4 Abb. 237 ; Sea Ins. Co. v. Stebbins, 8 Paige, 565. 4 Per Joseph F. Dnly, J., in New York Life Ins. Co. v. Glass, at Special Term, reported in N. Y. Daily Register of August 12, 1875. 304 THE LAW OF MORTGAGES. Where the equity of redemption is owned by a grantee of the mortgagor, not personally liable for the payment of the mortgage debt, he cannot, by delaying the litigation by vexations appeals and the like, take the rents and profits to the injury of the mortgagee, even though no receiver be appointed. If he attempts to do so and is finally defeated, and there is a de- ficiency, he may be directed to pay to the plaintiff the amount of rents received by him, or so much thereof as will be suffi- cient to satisfy the plaintiff's claims for principal, interest and costs. 1 After a mortgagor has parted with the mortgaged premises, and no longer receives the rents, he is not in a position to oppose an application for a receiver. Opposition to such an application should be offered, if at all, by the' persons whose rights would be affected by it. 2 The court will not undertake, by its officers, to collect the rent of the mortgaged property, if the person in possession or entitled to the rent is not either a party to the suit or the tenant of a party ; 3 and even if a receiver is appointed, such appoint- ment will not affect the rights of persons who were not parties. In Zeiter v. Bowman (6 Barb. 133), the owner of. the equity of redemption took a chattel mortgage from the tenant in possession as security for rent not yet due, and then assigned such chattel mortgage, and the rents which it was intended to secure. An action was commenced to foreclose the prior mortgage, to which the assignee of the chattel mortgage was not made a party. A receiver of the rents was appointed in that action, to whom the tenant attorned. It was held that the assignee of the chattel mortgage was not affected by these proceedings. If the owner of the equity of redemption is in possession, he may be compelled either to attorn to the receiver, and pay a rental to be fixed by the- court, or to surrender the premises. 4 It is provided by statute that a receiver of the property of a corporation can be appointed only by the Supreme Court, in 1 Bank of Pittsburgh v. Piatt, 1 Paige, 464 ; Bank of Utica v. Finch, 3 Barb. Ch. 293 ; Ferguson v. Kimball, 3 Barb. Ch. 616. 2 Wall St. Fire Ins. Co. v. Loud, 20 How. 95. a Sea Ina. Co. v. Stebbins, 8 Paige, 565. 4 Astor v. Turner, 3 How. 225 ; s. o. 2 Barb. 444 ; Frelinghuysen v. Colden, 4 Paige, 204. RECEIVERS OF RESTS. 305 a civil action brought by a creditor of the corporation for the foreclosure of a mortgage, upon the property over which the receiver is appointed ; and when the mortgage debt, or interest thereon, has remained unpaid at least thirty days after it became due, and was duly demanded from the proper officers of the corporation, and where either the income of such property is specifically mortgaged, or the property itself is probably insuffi- cient to pay the amount of the mortgage debt, upon at least eight days' notice of the application therefor, to the proper officers of such corporation. 1 No clerk, deputy clerk, or assistant clerk of any court of record of the counties of New York and Kings, or of the surrogate's court in said counties, can be appointed receiver under any order or judgment of any court, unless the parties to the action mutually agree to such appointment. 3 Powers and Duties of the Receiver. The fact that a person is a party to the suit, or that he is in possession of the premises, does not disqualify him from acting as receiver; and in many cases the appointment of such a person is the best thing that can be done for all concerned. If, however, a party to the action is appointed, and if he accepts the trust, his duties will be the same as though he were a stranger to the property, and he will not be suffered to manage the estate for his own benefit merely. It is his duty to make the fund of which he has charge produce the largest possible revenue, and he will be held to the strictest good faith. 8 As an officer of the court, the receiver represents the inter- ests in the property of all of the parties to the suit, which interests are often various and conflicting, and sometimes in- volved in doubt. It is his duty to protect the property in- trusted to him to the best of his ability for all those interests, without being controlled by the representations or directions of any one of them; though where the plaintiff is a principal party interested, his views and advice are entitled -to corre- 1 Laws of 1870, c. 151, § 3. » Laws of 1876, e. 205. 8 Bolles v. Duff, 37 How. 162. 20 306 THE LAW OF MORTGAGES. sponding weight. 1 'A receiver in possession has very little discretion allowed him, and he must apply to the court, from time to time, for authority to do such acts as may be beneficial to the estate. 3 A receiver is under no obligation to take forcible or violent means for the assertion of his rights as re ceiver, without an express order of the court to do so ; and the court will not pro- tect him in any attempt to obtain possession by violence further than the law will protect him. 3 As was said by Chancellor Walworth : " If the property is in the possession of a third person who claims the right to retain it, the receiver must proceed by suit in the ordinary way, to try his right to it, or the complainant should make such third party a party to the suit, and apply to have the receivership extended to the prop- erty in his hands ; so that an order for the delivery of the property may be made which will be binding upon him, and which may be enforced by process of contempt if it is not obeyed." 4 The proper practice in foreclosure cases, where a receiver has been appointed, and where the tenant is not a party, is to either secure the attornment of the tenant, or to extend the action by amendment so as to make the tenant a party. If any person not a party claims the rent by an assignment from the owner, or otherwise, he also should be made a party to the action. The court can then protect the person paying, as well as the officer claiming the rent, from the improper influences of other persons. But where the tenant and person claiming the rent are not parties to the action, and no attorn- ment to the receiver has taken place, tbe jurisdiction over the subject by way of process for contempt cannot be maintained. 5 By making the appointment of a receiver of the rents, the •court becomes virtually the landlord of the property, collecting the rents by its officer : . 6 and the court will not let the posses- 1 Iddings v. Bruen, 4 Sandf. Ch. 41'7. ' Parker v. Browning, 9 Paige, 388. 3 Parker v. Browing, 9 Paige, 388. 4 Parker v. Browning, 9 Paige, 388, 390. 6 Bowery Savings Bank v. Richards, 3 Hun, 306 ; Sea Ins. Co. v. Stebbins, 8 Paige, 565. e Steele r. Sturges, 5 Abb. Pr. 442. EECEIVERS OF RENTS. 307 t sion of the receiver, which is its own possession, be disturbed by any one without its permission. 1 Nor will 'the court, where it has made an order for the appointment of a receiver of real estate, and the tenants have attorned to such receiver under an order of the court, permit the tenants or any other persons to question the right of the court to grant such receivership by disturbing the possession of its officer. 2 The receiver cannot proceed in ejectment against the ten- ants without the authority of the court, and the possession of the tenants will not ordinarily be disturbed where a receiver is appointed. But although not themselves parties to the suit, the tenants of a party who have attorned to the receiver, may be compelled to pay rent to him. 8 1 JSoe v. Gibson, 1 Paige, 513 ; Albany City Bank v. Schermerhorn, 9 Paige, 3Y2. 2 Albany City Bank v. Schermerhorn, 9 Paige, 872. 3 Sea Ins. Co. v. Stebbins, 8 Paige, 565. CHAPTER XXV. COSTS. When Costs will he Granted in Actions to Foreclose. An action for the foreclosure of a mortgage, in common with all other actions for equitable relief, falls within the pro- vision of section 306 of the Code, under which in all actions other than those mentioned in section 304, costs may be allowed or not, in the discretion of the court. 1 And this rule applies to actions for strict foreclosure as well as in actions for foreclosure by a sale of the property. 3 Costs iu suits and proceedings in equity have always been held to be discretionary, 3 arid the decisions made before the Code as to the equitable rules which control the discretion of the courts in regard to costs are still valuable guides. If the action is tried before a referee, the referee stands in the place of the court, and the question of costs is in his dis- cretion. 4 When it is said that the giving of costs in equitable actions is entirely discretionary, it must not be supposed that a court of equity is not governed by definite principles in its decisions respecting costs. All that is meant by the dictum is, that courts of equity are not, like courts of law, held inflexibly to the rule of giving the costs of the suit to the successful party, but that they will, in awarding costs, take into consideration the circum- 1 Gallagher v. Egan, 2 Sandf. 742. a O'Hara v. Brophy, 24 How. 379; Bartow v. Cleveland, 16 Id. 364; s. o. 7 Abb. Pr. 339. 3 Methodist Episcopal Church v. Jaques, 1 Johns. Ch. 65 ; Garr v. Bright, 1 Barb. Ch. 157. 4 Pratt v. Stiles, 17 How. 211 ; s. c. 9 Abb. Pr. 150; Graves v. Blanchard, 4 How. 300; s. o. 3 Code R. 25 ; Ludington v. Taft, 10 Barb. 447; Taylor v. Root, 48 If. Y. 687. COSTS. 309 stances of a particular case, and the situation and conduct of the parties, and exercise their discretion in reference to those points. In exercising this discretion, however, courts of equity are. governed by certain fixed principles which they have adopted on the subject of costs ; and do not, as is frequently supposed, act upon the mere caprice of the judge before whom the cause is heard. The discretion to be exercised is a sound discretion. 1 The discretion of the judge at special term with regard to costs may properly be reviewed by the general term since the litigants are entitled to the discretion of both branches of the court upon matters which concern substantial rights, but the Court of Appeals will not interfere with the exercise of this discretion unless it appears that it was exercised under errone- ous views of the law affecting the rights of the parties. 2 "Where, however, the court below has allowed costs under a mistaken idea of the law, it is the duty of the Court of Appeals to correct the error. 8 Ordinarily costs will be granted to a successful litigant, and the cases in which costs are refused to him, or are granted to an unsuccessful party to the action are exceptional. 4 "Where there is a fund in court which is the subject of the action, the costs will commonly be paid out of it, but where equity requires it they may be charged upon any of the parties personally. A prior mortgagee, if made a party for the purpose of hav- ing the amount of his claim ascertained, is entitled to his costs, to be paid out of the fund, or by the plaintiff personally if the answer was unreasonably called for by him. 5 A party who is improperly joined as a defendant may have costs adjudged in his favor against the plaintiff personally, 6 but such costs should not be paid out of the fund. 7 "Where a mortgagor or any other party to the action unrea- ' 2 Barb. Ch. Pr. 322 ; Eastburn v. Kirk, 2 Johns. Ch. SIT. 5 Taylor v. Root, 48 IT. Y. 687. 3 Morris v. Wheeler, 45 N. T. 708. 4 Garr v. Bright, 1 Barb. Ch. 157. s Boyd v. Dodge, 10. Paige, 42 ; Mayer v. Salisbury, 1 Barb. Ch. 546 ; Jones y. Phelps, 2 Id. 440 ; Chamberlain t. Dempsey, 36 N. Y. 144, 147. ' Millandon v. Brugiere, 1 1 Paige, 163. 7 Nelson v. Montgomery, 1 Edw. 657. 310 THE LAW OF MORTGAGES. sonably defends, he may be charged personally with the costs for the benefit of those entitled to the surplus. 1 The failure to serve a notice of no personal claim under sec- tion 131 of the Code does not deprive the court in equity cases of the power to award costs against a defendant who unreasona- bly defends. It is not necessary to serve such a notice, 3 and the defendant who receives a copy of the complaint is more fully informed of the nature and object of the action than he would be from a mere abstract such as the notice under the statute is. 3 Prior to the framing of the 133d rule of the Court of Chan- cery, a subsequent mortgagee or judgment creditor who, being made a party defendant, answered and disclaimed any interest, was entitled to costs, to be paid out of the fund if that were sufficient, but by the plaintiff if it were insufficient, on the ground that such defendant should be called upon before suit brought and requested to release or otherwise disclaim. 4 But this was changed by the 133d rule, which was known as Chan- cellor Saotdfobd's rule. Under this rule a complainant was al- lowed to serve with the subpoena a notice of the object of the action and of no personal claim. If the defendant on whom such notice had been served appeared and disclaimed, he could not recover costs, but was required to pay costs to the complain- ant ; and if the complainant neglected .to serve such notice, by reason whereof a defendant was put to unnecessary costs in employing a solicitor to defend the suit, such costs might be charged personally on the complainant in the discretion of the court. 5 The object of this rule was to relieve the complainants, in mortgage cases, from the expense of unnecessary disclaimers, put in by defendants who were merely formal parties to the suit and against whom no personal decree was sought. To en- title a defendant to costs under the rule, where he appeared by a solicitor but did not disclaim, he was required to satisfy the court that he had been misled as to the object of the suit and 1 Jone3 v. Phelpa, 2 Barb. Ch. 440 ; Barnard v. Bruce, 21 How. 360. 2 Gallagher v. Egan, 2 Sandf. 742. 3 O'Hara v. Brophy, 24 How. 3*79. 4 Catlin v. Harned, 3 Johns. Ch. 61 ; Titus v. Velie, 6 Id. 435*. 6 Rules of N. Y. Court of Chancery, pp. 102, 103 ; note to Jay v. Ensign, 9 Paige, 231. COSTS. 311 the relief sought against him, in consequence of the neglect of the complainant to give the usual notice ; and that his sole ob- ject in employing a solicitor was to protect himself or his prop- erty from an unjust claim which he supposed that the complain- ant might have made against him in the bill. 1 Where there are two separate mortgages on the same prop- erty, and an action to foreclose is commenced by the holder of the first mortgage against the holder of the second mortgage and all junior incumbrancers, an action subsequently commenced to foreclose the second mortgage, would in general, be both unnecessary and improper, and in a case where both of such actions were commenced by the same solicitor, he was compelled to elect in which action he would take his decree, in order that the owners of the equity of redemption should be charged with only one bill of costs. 2 The principle of the decision is, that where an action is unnecessarily commenced, and where the relief prayed for might be obtained on motion in an action already pending, the plaintiff will not be entitled to costs. 3 In a case where the second mortgagee could not procure the satis- faction of his mortgage under the action already pending, as where a judgment of foreclosure upon the first mortgage had been stayed by appeal, the principle would not apply. 4 Costs in Actions to Redeem. As a general rale, the party claiming the right to redeem premises from a mortgage, whether he is a plaintiff or defend- ant, must pay the costs of the proceedings, as well as the amount due on the mortgage, before he can be permitted to redeem. 5 The v plaintiff, therefore, in an action to redeem, will, as a general rule, be compelled to pay costs to the defend- ant, although he ultimately succeeds, in obtaining the relief prayed for. But if the defendant has behaved inequitably or 1 Jay v. Ensign, 9 Paige, 230. 2 Wendell v. Wendell, 3 Paige, 509. 3 De La Vergne v. Evertaon, 1 Paige, 181. 4 See Bache v. Purcell, 6 Hun, 618. 5 Benedict v. Gilman, 4 Paige, 58; Brockway v. Wells, 1 Id. 617. 312 THE LAW OF MORTGAGES. improperly, lie may be deprived of or even compelled to pay costs. 1 In a case where a party entitled to redeem under a statute foreclosure, had tendered the amount due with costs, he was not charged with costs on his subsequent bill to redeem, 2 and it has also been held that a party entitled to redeem, who tenders the whole amount due before filing his bill, will be excused from paying the costs of his adversary though an administrator. 3 Where the defendant interposes an unconscientious defence, 4 or is the cause of the litigation by unreasonable or oppressive conduct, he may be charged with costls. 3 So, also, if the mort- gage has actually been satisfied before the action to redeem is commenced. 6 Tender after Action brought and before Judgment. If the defendant wishes to pay the mortgage debt after the commencement of the action to foreclose, he cannot then either make or plead a tender, for a tender is incomplete without in- cluding in it all the costs, and the right to costs is not absolute but depends upon the discretion of the court. 7 The statute al- lowing a defendant to tender to the plaintiff or his attorney an amount sufficient to satisfy the demand with costs to the time of tender, and providing that if it shall appear on the trial that the amount so tendered was sufficient to pay the demand and costs, the plaintiff should not be entitled to costs subse- quent to the tender, is confined to actions at law, and does not affect actions for the foreclosure of mortgages. 8 In an action of foreclosure, where tender is made before judgment, if the parties do not voluntarily adjust the costs, either party may apply to the court for that purpose. 9 But 1 Slec v. Manhattan Co. 1 Paige, 48 ; Brockway v. Wells, 1 Id. 617 ; Vroom v. Ditmas, 4 Id. 526, 533. 2 King v. Duntz, 11 Barb. 191. 3 Van Buren v. Olmstead, 5 Paige, 9. 4 Slee v. Manhattan Co. 1 Paige, 48. B Barton v. May, 3 Sandf. Oh. 450. Calkins v. Isbell, 20 N. Y. 147. ' Bartow v. Cleveland, 16 How. 364; s. o. f Abb. 339 ; Pratt v. Ramsdell, 16 How. 69; Thurston v. Marsh, 14 Id. 572;' s. commence an action in the nature of a suit in equity for the purpose of removing such lien as a cloud upon the plaintiff's title ; or, if the lien is adjudged to be valid for any amount, to have an account taken and the amount ascertained. A sale of the premises to adjust the equi- 1 Benedict v. Gilman, 4 Paige, 58. a See the form of a judgment in a case in which there were many conflicting equities, in Kendall v. Treadwell, 14 How. 165 ; s. o. 5 Abb. 16. 3 Perine v. Dunn, 4 Johns. Ch. 140; Mcjinstry T . Merwin, 3 Johns. Ch. 486 ; Bolles v. Duff, 43 N. Y. 469. 4 Robinson v. Ryan, 25 N. Y. 320; Jackson v, Bowen, 1 Cow. 13; Winslow v. Clark, 41 N, Y. 261. 392 THE LAW OF MORTGAGES. ties of the parties would, in all cases, be permissible, or, if it was thought more convenient, the junior lienor might be compelled either to redeem by paying amount due upon the original prior mortgage, exclusive of the costs of the defective foreclosure, but with the costs of the action, within a certain time, or in default thereof to stand foreclosed. The judgment would also pro- vide that the plaintiff might redeem from the defendant, in respect both to the moneys paid by him and also to his own lien, or in default thereof that the purchaser be foreclosed. This was the practice in chancery, where a first mortgagee filed a bill against the second mortgagee and the mortgagor. 1 The title does not pass to the plaintiff on a strict foreclosure, until a final order is obtained after the expiration of the time allowed to redeem. Until that order is obtained, the records of the court do not show which party has finally obtained the judgment or who is the owner of the land, and the person de- siring to redeem may apply ( o have the time to pay the amount decreed to be due, extended. 2 An action of strict foreclosure is the direct converse of an action to redeem. In the one the judgment requires that the defendant redeem within a certain time or lose his rights, and in the other it directs that the plaintiff may redeem within a certain time, and that if he fails to do so he lose his rights. If the plaintiff in an action for redemption fails to redeem within the time appointed, the dismissal of his complaint as the conse- quence of such failure, operates as a strict foreclosure. 8 In the case of an action for a strict foreclosure, it was a common thing to extend the time for redemption, but in actions to redeem the rule was more strict in requiring the person seeking re- demption to do so within the time appointed. 4 If the value of the land be equal to the debt, the debt will be extinguished by a strict foreclosure, 6 but otherwise it will be 1 2 Barb. Ch. Pr. 189. s Bolles v. Duff, 43 N. Y. 469. 3 Perine v. Dunn, 4 Johns. Ch. 140 ; Beach, v. Cooke, 28 ST. Y. 535 ; Hansard v. Hardy, 18 Ves. 460 ; Wood v. Surr, 19 Beav. 551 ; Bolles v. Duff, 43 N. Y. 474. 4 Brinckerhoff v. Lansing, 4 Johns. Ch. 65 ; Perine v. Dunn, 4 Id. 140 ; Fisher on Morts. 606. 1 Morgan v. Plumb, 9 Wend. 287. ACTION ON THE BOND. 393 reduced to the extent of the value of the land, to be ascertained in an action at law upon the obligation of the debtor. 1 Mortgaged Property cannot he Sold under an Execution for the Mortgage Debt. The fact that a debt is secured by a specific lien upon a por- tion of the property of the debtor, can furnish no reason why a judgment upon it should not be enforceable against the remain- der of his estate. 3 It is provided by statute, however, that when a judgment shall be recovered for a debt secured by a mortgage of real estate, or for any part of such debt, it shall not be lawful for the sheriff to sell the equity of redemption of the mortgagor, his heirs or assigns in such estate, by virtue of any execution upon such judgment, 3 and prior to the passage of this statute it was said by Chancellor Kent, that the mortgagor ought to proceed directly on the mortgage, or else seek other property to obtain satisfaction for his debt. 4 Effect of the Commencement of a Foreclosure on the right of the Mortgagee to Proceed at Law. After a bill shall be filed for the foreclosure or satisfaction of a mortgage, and after a decree rendered thereon, no proceed- ings whatever can be had at law for the recovery of the debt secured by the mortgage, unless authorized by the court. 5 A bill may be filed to foreclose a mortgage after the commence- ment of an action at law upon the bond, and before any judg- ment has been obtained, but after the filing of the bill of fore- closure, no proceedings can be had in the action at law, without the special order of the court. 6 The provision of the statute is not limited to an action at law against the mortgagor only, or upon the securities originally given as collateral to the mortgage, but extends to proceedings 1 Spencer v. Harford, 4 Wend. 381 ; De Grant v. Graham, 1 N. Y. Leg. Obs. VS. ' Roosevelt v. Carpenter, 28 Barb. 426. ' 2 R. S. 368, § 31. 1 Tice v. Anniii, 2 Johns. Ch. 130. 5 2 R. S. 191, § 153. " Williamson v. Champlin, 8 Paige, 70; affi'g s. c. Clarke, 9. 394 THE LAW OF MORTGAGES. at law to enforce the liability of a purchaser of the mortgaged premises, who has assumed the mortgage debt. 1 As soon as the action to foreclose the mortgage is com- menced, and at all times thereafter, the court in which that action is pending is vested with complete control over all reme- dies for the collection of the mortgage debt. The statute gives to the mortgagee the right to join as defendants in the action to foreclose, all persons by whose several obligations or evidences of debt the payment of the mortgage debt is secured, and the court is empowered to adjudge as against such persons that they shall pay the balance of the debt remaining unsatisfied after a sale of the mortgaged premises, and to enforce such judgment as in other cases. 3 Having offered this complete remedy to the creditor, the legislature has taken away from him the right which he might otherwise possess, to appropriate the land by a suit in equity, while, at the same time, he pursued the several persons by whose obligations the debt was secured, in actions at law. The statute does not take away entirely from the courts of law the right to entertain actions for the collection of debts secured by mortgage, but it deprives a mortgagee of the right, either to commence or to proceed with, any such action after he has invoked the jurisdiction of a court of equity in an action to foreclose, without first obtaining special permission of the court of equity in which such foreclosure was commenced. ' The fact that the mortgagee has proceeded with the fore- closure, and that, having obtained all the relief he asked for in that action, and the land having all been sold, the mortgage debt still remains unsatisfied, does not authorize the mortgagee to proceed at law without the authority of the court of equity. The statute is explicit, and, at no time after the commencement of the action to foreclose', can a remedy be had in a court of law Without the consent of the tribunal in which the foreclosure was instituted. The statute confers in general terms upon the court of equity the power to authorize proceedings at law, but it does not specially define the manner in which that power shall be ex- ercised. Proceedings at law are forbidden unless authorized, 1 Pattison v. Powers, 4 Paige, 649. ! 2 E. S. 191, § 154. ACTION ON THE BOND. 395 and the presumption is that the granting or refusing of such authorization is a matter of judicial discretion based upon and controlled by the rules and principles of enlightened justice which prevail in all courts of equity. There is, therefore, no case in which, as a matter of legal right, a mortgagee can insist upon the granting of the authority necessary to enforce his legal remedy after he has commenced an action to foreclose. In each case the court has the right, and it is its duty, to take into con- sideration the equities and circumstances of the case, and to exercise a sound discretion in granting or refusing the appli- cation. 1 Where the mortgage debt is secured by the personal obliga- tion of a person who was a non-resident at the time the action to foreclose was commenced, and against whom, therefore, at that time, no valid judgment for deficiency could have been rendered, 2 authority to sue such person for a deficiency remain- ing after the sale of the mortgaged premises could not properly be refused ; but where it is evident that the plaintiff could have had a perfect remedy against all persons who are liable for the payment of the debt, by a decree over against them for the de- ficiency, if he had chosen to make them parties to his foreclos- ure suit, it might not be a proper exercise of discretion for the court to permit any proceedings in an action at law. 3 And where the mortgagee has voluntarily refrained from asking for a judgment for the deficiency in the foreclosure suit, some satis- factory reason should be assigned for permitting him to insti- tute a separate action for its recovery. 4 ■ "Where the defendant in an action at law which was pend- ing when the foreclosure was commenced, sets up a defence which cannot be tried in the action to foreclose, he not being a party to that action, because of a doubt as to whether a decree could be rendered against him in the action to foreclose, the court may allow the parties to proceed so far, at least, as shall 1 Equitable Life Ins. Co. v. Stevens, in the Court of Appeals ; not reported ex- cept by memorandum in N. Y. Weekly Digest, vol. 1, p. 465. 2 Bartlett v. McNeil, 60 N. Y. 53. 3 Suydam t. Bartle, 9 Paige, 294. 4 Equitable Life Ins. Co. v. Stevens, in Court of Appeals ; memorandum in N. Y. Weekly Digest, vol. 1, p. 465. 396 THE LAW OF MORTGAGES. be necessary to test the validity of the defence. 1 So, too, if an action at law be begun in good faith before the commencement of the foreclosure, the court will permit the plaintiff to proceed to judgment in that action rather than allow the defendants to obtain an inequitable advantage. 2 But the fact of a deterior- ation in the value of the mortgaged premises by fire, against which the plaintiff might have guarded himself by insurance, is not a sufficient ground to allow him to work two remedies at the same time. 3 After the mortgagee has obtained judgment of foreclosure, he will not be allowed to sue on the debt at law until the rem- edy on the judgment is exhausted, and the fact that he has elected to proceed in rem against the property will be a defence to the action at law. 4 The statute, in making it unlawful for a creditor to seek to collect his debt by an action at law after he has instituted a pro- ceeding in equity for the same purpose, does not in any manner affect the right of a party who has been compelled to pay the mortgage debt, wholly or partially, from maintaining an action for his reimbursement against another who had become liable upon an independent agreement to indemnify him. So, where a person obligated ^to pay a mortgage, coaveyed the mortgaged premises to another, who assumed the obligation and covenanted to pay it, and the mortgagee did not make such grantee a party to the foreclosure, but compelled the grantor to pay the defi- ciency, it was held by the general term in the First Department, that it was not. necessary for the grantor to obtain the consent of the court in which the mortgage had been foreclosed before commencing an action against the grantee upon his covenant. 5 Effect of obtaining Judgment at Law on the Right of the Mort- gagee to Foreclose. If judgment be obtained in the action at law before filing 1 Suydam v. Bartle, 9 Paige, 294 ; Williamson v. Champlin, Clarke, 9 ; affi'd 8 Paige, 70. 2 Thomas v. Brown, 9 Paige, 370. » Engle y. Underbill, 3 Edw. Ch. 249. 4 Nichols v. Smith, 42 Barb. 381. 6 Comstock v. Drohan, reported in The Daily Register of October 21st, 1876. It will probably appear either in 8 or 9 Hun. EJECTMENT. 397 the bill to foreclose, no proceedings can be taken under the mortgage until the remedy of the plaintiff on the judgment is exhausted. 1 If this objection does not appear upon the face of the bill, and the complainant has falsely alleged that no proceed- ings at law have been had, the defendant may plead the re- covery of such judgment in bar of the foreclosure suit. 2 And if the fact of the 'recovery of such judgment appears in the bill itself, the court cannot make a decree of foreclosure until the execution has been returned unsatisfied ; although the defend- ant has suffered the bill to be taken as confessed against him. 3 Ejectment. Prior to the Revised Statutes, the mortgagee might, after default, obtain possession of the mortgaged premises by an action of ejectment, and hold them until his debt had been sat- isfied by the rents and profits, or otherwise. 4 The Revised Stat- utes provided, however, that no action of ejectment should thereafter be maintained by a mortgagee or his assigns or repre- sentatives, for the recovery of the possession of the mortgaged premises. 5 This provision applies to all mortgages, whether executed before or after its passage, 6 and it also applies to all contracts in the nature of mortgages, or which the law declares to be such. 7 The statute only takes away from the mortgagee the right to obtain possession of the mortgaged premises after default. It has not changed the rule that he may protect his possession when he has obtained it without force, by some legal mode other than by action, and the authorities are decisive that eject- ment will not lie against a mortgagee in possession. 8 1 2 R. S. 192, § 156. 5 The North River Bank v. Rogers, 8 Paige, 648. 3 Shufelt v. Shufelt, 9 Paige, 137; Grosyenor v. Day, Clarke, 109. 4 Jackson y. Stafford, 2 Cow. 547 ; Jackson v. Dubois, 4 Johns. 216. 6 2 R. S. 312, § 57. 8 Stewart y. Hutchins, 6 Hill, 143 ; affi'g 13 Wend. 485. ' Murray v. Walker, 31 N. Y. 399 ; McBurney v. Wellman, 42 Barb. 390. 6 Van Duyne v. Thayre, 14 Wend. 233 ; Phyfe v. Riley, 15 Wend. 248 ; Wat- son T. Spence, 20 Wend. 260; FAx v. Lipe, 24 Wend. 164; Pell v. IJImar, 18 N. Y. 139 ; Hubbell y. Moulson, 53 N". Y. 225. See further, and as to rights of mort- gagee in possession, ante, page 79. 398 THE LAW OF MORTGAGES. The mortgagor cannot try the question as to whether the mortgage has been satisfied from the rents and profits received by the mortgagee while in possession, in an action of ejectment ; the only way to determine the complicated equities which arise in such a case is by an action in the nature of a suit in equity. 1 But if the mortgage has been paid in full by the mortgagor, and no account is required to be taken, ejectment wduld be a proper remedy, as it would, also, if the lien of the mortgage had been destroyed by a tender. 2 1 Beach v. Cooke, 28 N. Y. 508. 5 Edwards v. The Farmers' Fire Ins. & Loan Co. 21 Wend. 467 ; 26 Wend. 541 CHAPTER XXXIII. FORECLOSURE BY ADVERTISEMENT. General Policy of the Statutes regulating Sales by Mort- gagees under Powers. With us, in the first stages of our colonial government, lands were easily procured, and were not valued more than personal property. The party holding a mortgage on real estate was accordingly permitted, under a power for such purpose, to sell without a bill of foreclosure, as he might on a mortgage of per- sonal property. The state of the courts, too, made this neces- sary, as the Court of Chancery, as held by the governor, was deemed a usurpation, and was so managed that the extraordinary delays, and fruitless expense attending it, rendered it not only useless, but a grievance to the inhabitants, especially those who were so unfortunate as to be concerned in it. These powers accordingly took deep root, and to prevent any question as to sales under them, the act of the 19th of March, 1774, was passed ; the second section whereof recited that many real estates were held under sales made by the mortgagees, who were authorized by the mortgagor to make a conveyance of the same for the payment of the debt, and to return the overplus, and thus many inconveniences might arfSeTif such estates should be redeemable in equity, vexatious suits promoted and bona fide purchasers ruined. And it was enacted that no good and bona fide sale of lands made, or to be made, by mortgagees or others authorized by a special power, shall be defeated to the preju- dice of the bona fide purchaser, in favor or for the advantage of any person claiming a right of redemption in equity, with a saving to other mortgagees and to judgment creditors. 1 ' Per Chancellor Walworth, in Slee v. Manhattan Company, 1 Paige, 48, 69 ; Doolittle v. Lewis, 1 Johns. Ch. 45, BO. 400 THE LAW OF MORTGAGES. Various changes have been made in the statutory regulations concerning the execution of powers to sell, but the foreclosure of mortgages by public sales, under powers without judicial de- cree, has always been recognized in this State. Such a fore- closure is simple, cheap, and apparently as little liable to abuse as a judicial foreclosure, and the proceedings have,saceordingly, been regarded favorably by our courts. 1 The power of sale has been deemed to affect merely the remedy of the mortgagee, and not to divest the mortgagor of any of his rights, and so custom- ary has it become to insert a power to sell in mortgages, that it has been determined that a general power to execute a mortgage carries with it an authority to insert a power to sell upon de- fault. 3 In the absence of fraud or some statutory regulation upon the subject, parties may contract for a private sale, and without notice. 8 The provisions of our statutes and their whole policy are, however, incompatible with the right of the parties to reg- ulate the mode of sale under powers of this description, by their own contract. The statute adopts the power and assumes to regulate its exercise in a manner which the legislators supposed would give effect to the mortgage security, while it guards the mortgagor against oppression, and protects the rights of other incumbrancers. The statute was designed to include, and in terms does extend to, all sales made in virtue of powers made for that purpose, contained in mortgages, except those directed by order of some judicial tribunal ; and the party availing him- self of the power must consequently conform to the require- ments of the statute in order to bar the equity of redemption. 4 The remedy laid down by the statute must be strictly pursued, or the proceeding will be void. 5 . The statute regulates the 1 Slee v. Manhattan Company, 1 Paige, 48, 70; Jackson v. Henry, 10 Johns. 193 ; Doolittle v. Lewis, 7 Johns. Ch. 45; Wilson y. Troup, 2 Cow. 195, 202.' 2 Wilson v. Troup, 2 Cow. 195 ; affi'g s. o. 7 Johns. Ch. 25. 8 Elliott v. "Wood, 45 N. Y. 71, 78 ; affi'g s. o. 53 Barb. 285 ; Montague v. Dawes, 12 Allen, 397; Lawrence v. The Farmers' Loan & Trust Co. ,13 N. Y. (3 Kern.) 200. 4 Lawrence v. The Farmers' Loan & Trust Co. 13 N. Y. (3 Kern.) 200, 211, 213. 6 Cole v. Moffitt, 20 Barb. 18; Cohoes Co. r. Goss, 13 Id. 137; King v. Duntz, 11 Id. 191 ; Stanton v. Kline, 16 Id. 9; St. John v. Bumpstead, 17 Id, 100; Van FORECLOSURE BY ADVERTISEMENT. 401 remedy merely, and not the rights of the parties, and the statu- tory provision which controls, is, therefore, the one which is in force at the time when the power of sale comes to be executed. 1 What Mortgages may he Foreclosed oy Advertisement. Every mortgage of real estate, executed prior to January 1, 1830, when the Revised Statutes took effect, by any person - being at the time more than twenty -five years of age, or subse- quently executed by any person over the age of twenty-one years, containing therein a power to the mortgagee or any other person to sell the mortgaged premises, upon default being made in any condition of such mortgage, may be foreclosed by adver- tisement, in the cases and in the manner specified in the stat- ute. 2 To entitle any party to initiate the proceedings to foreclose, it is requisite : 1. That some default in a condition of such mortgage shall have occurred, by which the power to sell became operative ; 2. That no suit or proceeding shall have been instituted at law, to recover the debt then remaining secured by such mort- gage, or any part thereof ; or if any suit or proceeding has been instituted, that the same has been discontinued, or that an exe- cution upon the judgment rendered thereon has been returned unsatisfied in whole or in part ; and, 3. That such power of sale has been duly registered, or the mortgage containing the same has been duly recorded. 8 The mortgage containing the power should be recorded in the offices of the clerks of each county where the land upon Slyke v. Sheldon, 9 Id. 278; Bloom v. Burdick, 1 Hill, 130; Low v. Purdy, 2: Lans. 422. 1 James v. Stull, 9 Barb. 482. 2 2 R. S. 645, § 1 ; 3 R. S. (6th ed.) 847, § 1. Tit. 15, c. 8, pt. 3, of the Rev. Stat, treats of the foreclosure of mortgages by advertisement. This title has been amended by Laws of 1831, c. 102 ; Laws of 1838, c. 266 ; Laws of 1842, c. 277; Laws 'of 1844, c. 346; Laws of 1857, c. 308 ; Laws of 1868, c. 804, and Laws of 1870, c. 706. The various enactments are collected in the 6th ed. of the Rev. Stat. (Banks & Bro.) See vol. 3, p. 847, and also in Fay's Digest of Statutea vol. 2, p. 65. 3 3 R. S. (6th ed.) 847, § 2. 26 4:02 THE LAW OF MORTGAGES. which it is a lien is situated ; 1 but it has been said that this provision is wholly for the benefit of the purchaser, and that the omission does not affect the validity of the sale. 2 The notice of foreclosure must contain a statement of the amount due thereon at the time of the first publication, and for this reason, a mortgage given as security for unliquidated dam- ages cannot be foreclosed under the statute, 3 unless it contains, within itself, a measure by which the amount of damages may be definitely liquidated and ascertained. 4 Who may Foreclose. The personal representatives of the mortgagee may institute proceedings to foreclose; a mortgage interest in this State, being regarded as a mere chattel. 5 This would include his assignees, 6 and his executors and administrators. If the mort- gage has been assigned as security for a debt owing from the mortgagee to a third person, the assignee holds as assignee of the power of sale, and may foreclose under the statute ; but such foreclosure will not divest the interest of the mortgagee in the debt, and if the assignee purchases the land at the sale, he will hold it subject to the right of the mortgagee to redeem, on payment of the debt to secure which the assignment was made.? If two or more persons are jointly interested in a mortgage, it is the better practice for all to join in foreclos- ing it. 8 A surviving executor of the mortgagee may foreclose, and since the exercise of the power is a matter of contract and not of jurisdiction, the power of sale contained in a mortgage of land -in this State, when the mortgagee resides and dies in 1 Wells v. Wells, 4Y Barb. 416. 2 Wilson v. Troup, 2 Cow. 105, affi'g ; 7 Johns. Ch. 25. 8 Ferguson v. Kimball, 3 Barb. Ch. 616, 619. 4 Jackson T. Turner, 1 Wend. 458. - Demnrest v. Wynkoop. 3 Johns. Ch. 129, 145. • Cohoes Co. v. Goss, 13 Barb. 137 ; Wilson v. Troup, 2 Cow. 195, 231. ' Slee v. The Manhattan Co. 1 Paige, 48. B Wilson v. Troup, 2 Cow. 195, 231. FORECLOSURE BY ADVERTISEMENT. 403 another State, may be executed by his executors or administra- tors appointed in the State of bis domicile. 1 The power of sale is extinguished by payment, and the lien of the mortgage is discharged by a tender of the amount due upon it, and therefore a mortgage which has been paid, 2 or the amount of the debt secured by which has been tendered, 3 can- not be foreclosed by sale under the power. On the same principle, when enough has been sold to pay the debt, the power is exhausted and the remainder cannot be sold. 4 It has even been said that the foreclosure by sale under a power of a mort- gage which has been satisfied, conveys no title, even to a bona fide purchaser, 5 but the better opinion seems to be that, if the mortgage be undischarged upon the record, and if the proceed- ings be regular, a bona fide purchaser will be protected. 6 A power of sale contained in a usurious mortgage is void, and a purchaser under it haying actual notice of the usury ac- quires no title ; 7 but the sale could not be defeated to the prej- udice of a bona fide purchaser. 8 If there be any defence to the mortgage, or if there be any reason why the sale should not take place under it, the mort- gagor may always protect himself, either by commencing an action to restrain the sale, or by attending the sale and there giving notice of the facts. 9 Publishing, Posting, and Serving the Nbtioes of Foreclosure by Sale. Notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, must be given as follows : I . 1 Doolittle v. Lewis, 7 Johns. Ch. 45 ; Averill v. Taylor, 5 How. 476 ; s. c. 1 Code R. N. S. 213. * Cameron v. Irwin, 5 Hill. 272, 276. 3 Burnet v. Denniston, 5 Johns. Ch. 35. 4 Charter T. Stevens, 3 Den. 33. 6 Cameron v. Irwin, 5 Hill, 272. " Warner T. Blakeman, 36 Barb. 501 ; s. o. affi'd 4 Keyes, 487; Elliott v. Wood, 53 Barb. 285; Brown v. Cherry, 38 How. 352; s. o. 56 Barb. 635. - Hyland v. Stafford, 10 Barb. 558; Jackson v. Dominicli, 14 Johns. 435. 8 Jackson r. Henry, 10 Johns. 185. " Hyland v. Stafford, 10 Barb. 558 ; Burnet v. Denaiston, 5 Johns. Ch. 35, 41. 404 THE LAW OF MORTGAGES. 1. By publishing the same for twelve weeks successively, at least once in each week, in a newspaper printed in the county where the premises intended to be sold shall be situated ; or if such premises be situated in two or more counties, in a news- paper printed in either of them. 2. By affixing a copy of such notice, at least twelve weeks prior to the time therein specified for the sale, on the outward door of the building where the county courts are directed to be held, in the county where the premises are situated j 1 or if there be two or more such buildings, then on the outward door of that which shall be nearest to the premises. And by delivering a copy of such notice, at least twelve weeks prior to the time therein specified for the sale, to the clerk of the county in which the mortgaged premises are situated, who shall immediately affix the same in a book prepared and kept by him for that purpose ; and who shall also enter in said book, at the bottom of such notice, the time of receiving and affixing the same, duly sub- scribed by said clerk, and shall 'index such notice in the name of the mortgagor; for which service he is entitled to a fee of twenty-five cents. 3. By serving a copy of such notice, at least fourteen days prior to the time therein specified for the sale, upon the mortgagor or his personal representatives, and upon the subsequent grantees and mortgagees of the premises whose conveyance and mort- gage shall be npon record at the time of the first publication of the notice, and upon all persons having a lien by or under a judgment or decree upon the mortgaged premises subsequent to such mortgage, personally or by leaving the same at their dwell- ing-house, in charge of some person of suitable age, or by serving a copy of such notice upon said persons at least twenty-eight days prior to the time therein specified for the sale, by deposit- ing the same in the post office, properly folded and directed to the said persons, at their respective places of residence. 2 1 In the county of Erie the notice may be posted upon the bulletin boards to be placed in the vestibule of the new city and county hall, in the city of Buffalo. Laws of 1876, c. 11. 2 3 R. S.'(6th ed.) 84.7, § 3, FORECLOSURE BY ADVERTISEMENT. 405 The mortgagee may select the paper in which the publica- tion is to be made, and in the absence of actual fraud resulting in damage to the mortgagor, a sale will not be set aside because the paper in which the notice was published was not well cal- culated to give that general information which, in such cases, should be afforded. 1 The newspaper should be one printed in the county where the mortgaged premises are situated ; and in the county of New York, the Daily Register has been design nated by the judges of the courts of record, under an act passed for that purpose by the legislature, as the paper in which to publish all legal notices. 2 The first publication of the notice must be eighty-four days prior to the day -of sale specified in the notice ; but the twelve publications may be made in less than eighty-four days, pro- vided the publication be made once in each week for twelve weeks. 3 If the service of the notice is made by mail, the statute re- quires that it should be addressed to the residence of the party intended to be served. No provision is made for defective in- formation, and if the notice be wrongly addressed, the mistake will be fatal. 4 If the person served is notified as being an executor or ad- ministrator, it is sufficient if the notice be sent by mail addressed to the proper person, though the word executor or administrator be not added. 5 The method of service by mail may be adopted, even though the persons to whom the notices are sent reside in the same place with the party foreclosing and his attorney ; 6 and, on the other hand, the notice to the mortgagor may be mailed anywhere within the State. 7 If the land be situated in more than one county, the publica- tion may be made in a newspaper printed in either, but the 1 Wake v. Hart, 12 How. 444. °- Lawa of 18T4, o. 656. " Howard v. Hatch, 29 Barb. 29V ; George Y. Arthur, 2 Hun, 406. 4 Robinson v. Ryan, 25 N. Y. 320 ; Mowry y. Sanborn, 1 Hun, 380. 6 George T. Arthur, 2 Hun, 406. 8 Stanton r. Kline 11 N. Y. (1 Kern.), 196. ' Bunce v. Reed, 16 Barb. 347. 406 THE LAW OF MORTGAGES. power of sale must be recorded,' and the notice must be posted, and a copy must be delivered to the clerk, in each county. 1 A suit in equity is a proceeding of different character from a sale under a power. It is a judicial proceeding, directly against the parties, to obtain a decree against them, barring their respective rights and equities in the premises; and, of course, no one but parties or those claiming under them, can be affected by the decree. But so long as the law permits equities of redemption to be barred under powers, the sale under a power which conforms to the statute should be deemed to cut off all rights and interests which are subject to the power, except ao far as the effect of the sale is restricted by the statute. 2 The per- sons who are to be served with notice of sale are, therefore, those whom the statute directs to be served, and none other. Notice must be served upon " the mortgagor or his personal representatives ;" that is to say, upon the mortgagor or his ex- ecutors or administrators, and not upon his heirs or devisees. Neither the heir nor those who represent him are proper par- ties to the proceeding, as no provision is made for service upon them, or for any notice to them. Where the mortgagor is dead, and there are no personal representatives, the foreclosure may be good without the service of notice upon any one. 3 • If the wife of the owner of the equity joins in the mortgage she would be a mortgagor, and as such entitled to notice; 4 but if the mortgage be given for purchase money, or if it be made by the husband before marriage, notice served upon the hus- band alone would be sufficient. Though the wife does not de- rive title from h er husband, yet she claims under him within the intent of the statute, and a sale under a power regularly conducted will be a bar to her claim to dower. 5 The statute does not, in terms, require a notice to be served upon the wife of a grantee of the mortgagor, and it is believed that such service is not necessary, but, since there is authority 1 Wells v. Wells, 47 Barb. 416. * Per Eapallo, J., in Brackett v. Baum, 50 N. T. 8. See contra, Hornby v. Cramer, 12 How. 490. The question which is raised in this case upon the word- ing of the statute is interesting. 3 Anderson v. Austin, 34 Barb. 319 ; Low t. Purdy, 2 Lans. 422. 4 King v. Duntz, 11 Barb. 191. 6 Brackett v. Baum, SO BT. T. 8. FORECLOSURE BY ADVERTISEMENT. 407 for holding that the wife of a grantee not served with notice still retains her inchoate right of dower, 1 the better practice would be to err on the side of abundant caution. The assignee of a junior mortgage, whose assignment is re- corded, is entitled to notice. 2 The statute makes a curious distinction between persons who hold under conveyances or mortgages from the mortgagor and the judgment creditors of the mortgagor. Those grantees and mortgagees " whose conveyance and mortgage shall be on record at the time of the first publication of the notice," and those only, are entitled to service of the notice upon them, either personally or at their dwel&ngs, or by mail. But all judgment creditors whose liens were acquired subsequent to the mortgage are entitled to such notice. The lien of a judgment, therefore, perfected after the first publication of notice and be- fore sale, is not cut off, nor is the right of redemption of the judgment creditor barred unless notice is served upon him as prescribed by the statute. 3 The lien of a person entitled to notice and not receiving it, is not destroyed, and this seems to be so even though he knew of the sale. 4 What the Notice of Foreclosure oy Sale must contain. The notice of foreclosure by sale, which, as we have already seen, must be published, posted and served, must specify : 1. The names of the mortgagor and mortgagee, and the assignee of the mortgage, if any. 2. The date of the mortgage and when recorded, or where the power of sale is registered. 3. The amount claimed to be due thereon at the time of the first publication of such notice. 4. A description of the mortgaged premises, conforming substantially with that stated in the mortgage. 5 5. The time and place of the intended sale. ; Northrup v. Wheeler, 43 How. 122. * Window v. MeCall, 32 Barb. 241; Wetmore v. Roberta, 10 How. 61. 3 Groff v. Morehouse, 51 N. Y. 503. 4 Root v. Wheeler, 12 Abb. 294; Wetmore v. Roberts, 10 How. 51. 6 2 11. S 546, § 4; 3 R. S. (6th ed.) 847, § 4. 408 THE LAW OF MORTGAGES. The statute says that "notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part thereof, shall be given," &C. 1 The notice should therefore show upon its face that the sale which is spoken of is for the purpose of foreclosure, or, what would be equivalent, that the sale is to be by virtue of a power of sale contained in the mortgage. Most persons would readily enough conjecture the purpose of the notice, though not distinctly stated ; but titles to land should not be left to depend upon vague inferences. 2 Executors or administrators are not assignees within the meaning of the statute, and it is not necessary that the derivation of the executors' power to foreclose should appear in the notice. It is enough that they should subscribe the notice as " executors of the last will and testament of the mortgagee, deceased." The addition of these words is not only descriptio personw, but is descriptive of the character in which they act. 8 The statement of the date of the mortgage and where it was recorded must be sufficiently accurate to accomplish the pur- pose of the statute, and if there be a positive error, the question will be whether it is one calculated to mislead. If the date of the mortgage, the date of record and the clerk's office be all cor- rectly given, an error in the volume or page will not necessarily be fatal. The act does not require the volume and page to be stated. 4 The statute does not require that the amount claimed to be due at the time of the first publication of the notice should be set down in dollars and cents, though that is doubtless the read- iest manner of complying with its direction ; and a statement that a particular amount was claimed to be due at a certain. prior day, and that the mortgagee claimed that sum with interest from, that time, would probably be sufficient. 3 Indeed, if more be claimed by the mortgagee than is really due, under an honest mistake, the sale will still be valid. 6 1 2 R. S. 646, § 3. 2 Judd v. O'Brien, 21 N. Y. 186, 190 ; Leet v. McMaster, 51 Barb. 236. 3 The People t. Preacott, 3 Hun, 419. * Judd v. O'Brien, 21 N. Y. 186, 188. 5 Judd t. O'Brien, 21 N. Y. 186, 189. " Klock v. Cronkhite, 1 Hill, 108; Jencks v. Alexander, 11 Paige, 619 ; Mowry v. Sanborn, 62 Barb. 223. FORECLOSURE BY ADVERTISEMENT. 409 If only a part of the debt secured by the mortgage, is due at the time of the first publication of the notice, it has been eaid that "the notice of sale should state the whole amount claimed to be unpaid at that time, and not merely the amount which has then become payable. 1 In the absence of author- ity on this point, the better practice would be to state both amounts. The description of the mortgaged premises contained in the notice of sale, must conform substantially to that contained in the mortgage, or the sale will be void. 2 The statute does not require any reference in the notice of sale to incumbrances. The insertion, therefore, in the notice of matters not required, does not render the notice defective, as to the matters stated in it that the statute requires to be stated. If matters, not called for by the statute, are stated, which are cal- culated to mislead the 1 public, and thereby prevent persons from bidding, the sale would be void ; but if the statement inserted in the notice, although calculated to mislead, is inserted by mistake merely, and is corrected before it could be presumed to influ- ence persons desiring' to bid, the mistake will not vitiate the proceedings. 3 The notice should specify a definite time and place when and where the sale will be made, in such a way that purchasers would not be likely to be deceived, 4 but if there be by common usage, an established place for such sales, as in the rotunda of the city hall, a notice that the sale would be made in the city hall, would be sufficient. 5 Postponing the Sale. The sale may be postponed from time to time, by inserting a notice of such postponement, as soon as practicable in the 1 Jencfos v. Alexander, 11 Paige, 619, 626. 2 Rathbone v. Clark, 9 Abb. 68, n. 3 Per Mullin, J., in Hubbell v. Sibley, 5 Lang. 51 ; Klock v. Cronkhite, 1 Hill, 107 ; Jencks v. Alexander, 11 Paige, 619 ; Burnet y. Denniston, 5 Johns. Ch. 35, 4*2. ' Burnet t. Denniston, 5 Johns. Ch. 36, 42. 5 Hornby v. Cramer, 1 2 How. 490. 410 THE LAW OF MORTGAGES. newspaper in which the original advertisement was published, and continuing such publication, until the time to which the same shall be postponed. 1 There is no direction providing for personal notice to any person ; the ordinary practice is to attend at the time and place appointed for the sale, and to give public notice to such persons as may be in attendance, and this should be done when practi- cable, since a departure from the custom, might be treated as evidence of bad faith. If it be announced, it should be an- nounced correctly, as a variance between the adjournment as announced and the adjournment as published, will be fatal to the validity of the sale 2 Where the sale was originally noticed for Sunday, an ad- journment to a later day, with personal notice to parties intei v ested, was held to be sufficient. 3 ■"■j Manner of Conducting the Sale. Such sale shall be by public auction, in the day-time, in the county where the mortgaged premises or some part of them are situated, except in sales on mortgages to the people of this State, in which case the sale may be at the Capitol. If the premises consist of distinct farms, tracts or lots, they shall be sold separately ; and no more farms, tracts or lots shall be sold than shall be necessary to satisfy the amount due on such mort- gage at the time of the first publication of notice of sale, with interest and the costs and expenses allowed by law. 4 The mortgagee, his assigns, and his or their legal represent- atives, may fairly and in good faith, purchase the premises so advertised, or any part thereof at such sale. 5 The sale must be made by the mortgagee, in a fair and just manner and in good faith, the mortgagee being regarded and treated as a trustee executing a power in trust. 6 Substantially 1 3 R S. (6th ed.) 847, § 5. = Miller v. Hull, 4 Den. 104. 3 Westgate v. Handlin, 7 How. 372; Sayles v. Smith, 12 Wend. 57. 4 3 R. S. (6th ed.) S47, § 6. *3 R. S. (6th el) S47, § 7. Jenoks v. Alexander; 11 Paige, 624; Ellsworth v. Lookwood, 42 N. Y. : Soule v. Ludlow, 3 Hun, 503 ; s. c. 6 N. T. Sup. (T. & C.) 24. FORECLOSURE BY ADVERTISEMENT. 411 the same rules prevail as control a sale tinder the direction of a referee in a foreclosure by action. 1 The sale must be by auction, and it must be public. It has been said, that where only the mortgagee and his attorney are present, the one bidding off the property to the other, this cannot be said to be a " public sale ; " 2 but when it is shown that all the world was invited to be present, and there is no deceit used or mistake occasioned, the absence of competition would not, of itself, be fatal. As a general rule, if the land be in separate parcels, marked for distinct and separate use, they should be sold separately. 3 But this rule is founded on the presumption that such a mode of sale will produce the largest amount of money, and it will not apply where the whole together will produce more than the aggregate of the respective parcels. If two or more parcels of land, which have previously been held and used together, be included in one mortgage, they may be sold together, unless some good reason is shown for adopting a different method of sale. 4 In making the sale in cases where the security is sufficient, it is the duty of the mortgagee, to consult the wishes of those interested in the surplus ; and he has no right to sell the whole of the mortgaged premises together, when a person claiming an interest in the property subsequent to the mortgage, offers to bid enough to satisfy the mortgage and costs, for a portion of it, and requests that portion to be first sold. 5 The mortgagee may not only sell in separate parcels, but he may also reserve certain rights for the benefit of the owner of the equity of redemption ; as, for instance, he may sell the land and reserve a growing crop, the land being sufficient to pay his debt. 6 It is in the 'power, of the mortgagee, to allow to the pur- chaser a credit or postponed period of payment, as to the whole of the money which he is entitled to receive or any portion of 1 Soule v. Ludlow, 3 Hun, 603 ; s. c. 6 N. T. Sup. (T. in this case, it was held that the assent by the owner to the retaining of possession of the boat by the vendee, and the receipt by him of a portion of the purchase price, was a waiver of th& forfeiture, and extended the time in which the purchaser might acquire title to .the boat by the payment of the residue of the purchase money. 4 In the absence of any agreement fixing the time when the residue should be paid, the money was payable when requested, and the purchaser's right to acquire title by paying the residue of the price would continue until such re- quest was made. 1 See also Andrew v. Dietrich, 14 Wend. 32 ; Saltus v. Everett, 20 Id. 273 ; BarDett v. Pritchard, 2 Pick. 512 ; Fairbanks v. Phelps, 22 Id. 535 ; The Dresser M'f'g Co. t. Waterston, 3 Mete. 9. 2 Piser v. Stearns, 1 Hilt. 86. 3 See the contract in full in Brewster v. Baker, 16 Barb. 613, where it waa held tp be a chattel mortgage. * See also Cushman t. Jewell, 1 Hun, 525. CONDITIONAL SALES OF CHATTELS. 437 In Kenny v. Planer (3 Daly, 131), the defendants sold a sewing machine to one Moore, receiving therefor $30 in cash, Moore agreeing to pay the balance, or $55, in monthly install- ments ; in case of the removal of the machine from Moore's house, the defendants were HaTtley v. Tatnam, 1 Keyes, 222. s Gould v. Marsh, 1 Hun, 566 ; a. c. 4 N. Y. Sup. (T. & C.) 128; Carpenter v. Longan, 16 Wall. 271. 3 Chapin v. Shafer, 49 N. Y. 407, 413. * Rust v. Morse, 2 Hill, 255. 6 Fenn v. Bittleson, 2 Wela. Hurl. 4. 3 Smith v. Post, 1 Hun, 516. 4 Smith v. Post, supra. 8 2 R. S. 136, § 6. VALIDITY OF CHATTEL MORTGAGES.' 489 this statute differs from the statute which declares chattel mort- gages to be void as against creditors unless filed, for that statute protects all of the creditors of the mortgagor. They cannot question the rights of the mortgagee until they come with pro- cess of some sort, but when their claims are in such foVm as to give them a specific lien on the property of the mortgagor, the want of filing renders the mortgage void as against all creditors alike. 1 It does not follow that because a creditor cannot avail him- self of the presumption of fraud which arises from the con- tinued possession of property by the. debtor after he has pre- tended to assign or mortgage it, that he may not attack such a transaction as fraudulent and void as to him. The presump- tion is a matter of evidence which may avail only a certain class of creditors, but the fact of the intent to hinder, delay and de- fraud, when proven by other evidence, will render the assign- ment or mortgage void as to all creditors indiscriminately. 8 When a mortgage is fraudulent and void, the possession of the mortgagee is a trespass as to creditors, 3 and a sale under it, or exercising or claiming any title under it, will be a conversion as to junior incumbrancers. 4 It cannot be impeached'by a cred- itor at large, but when a creditor has an execution or attachment, or some other process which authorizes the seizure of the goods, 'he may take them as if no such mortgage had been made ; and if the sheriff, acting under such warrant, is sued, he may show that the alleged mortgage is void as against the creditor. 5 When a conveyance is said to be void as against creditors, the reference is to such parties when clothed with their judg- ments and executions, or such other titles as the law has pro- vided for the collection of debts. 6 Before creditors can attack 1 Laws of 1833, c. 279, § 1 ; Thompson v. Van Veoliten, 27 N. T. 568, 582; Theriot v. Prince, 1 Edm. Sel. Cas. 219. ! 2 E. S. 137. 3 Delaware t. Ensign, 21 Barb. 85. 4 Baskins v. Shannon, 3 N. Y. (3 Comst.) 310. 5 Kinchey v. Stryker, 26 How. 75 ; Frost v. Mott, 34 N. Y. 253 ; Thayer v. Willet, 5 Bosw. 344; s c. 9 Abb. 325; Skinner v. Oettinger, 14 Abb. 109; Pat- terson y. Perry, 10 Id. 82; Belmont v. Lane, 22 How. 365 ; Kqfly T. Breuaing, 33 Barb. 123. " Per Denio, J., in Van Heusen t. Radcliff, 17 N. Y. 580; Noble v. Holmes, 6 Hill, 194. 490 THE LAW OE MORTGAGES. a transfer of their debtor for fraud, they must show a judgment as well as execution ; or where they proceed by attachment, they must show that the justice had jurisdiction, and that the process was regularly issued. 1 , If a creditor seizes mortgaged chattels under an execution, it is necessary for him to show a valid judgment, execution and levy, and that the mortgage is fraudulent and void, and if he fails in any of this his levy will be wrongful. If he takes the property under an attachment, he must establish, in addition to the fraudulent nature of the mortgage, that his warrant was regular, and also that the debt existed for which the attachment was issued, unless this fact be proven by a judgment against the debtor. The mortgagee may prove that no debt existed until it is established by a judgment in the attachment suit. He may, therefore, defeat the attaching creditor on either of two grounds : 1. That there was no debt to justify the issuing of the attach- ment. 2. That he had a good title to the property in dispute when it was attached. 2 A bona fide purchaser of mortgaged property without notice of the lien may also show its fraudulent character, though he would not be suffered to do this if he purchased merely the equity of redemption. The same rule which would protect the owner of the entire title would also protect the owners of por- tions of it, as junior mortgagees 3 or other lienors. It is neces- sary that these liens be in themselves valid, for there would be no propriety in disturbing the apparent lien of one void incum- brance in order to benefit another which is equally void. 4 If a junior mortgagee attacks a prior incumbrance as fraudu- lent, he must show a valuable consideration or an honest debt, and also that the mortgage was given to secure it. B But if the consideration of the contract under which the claim is made is sufficient to support a valid specific lien, it will not be a suffi- cient objection against it that it was given for a prior indebted- 1 Per Bronson, J., in Van Etten v. Hurst, 6 Hill, 311. 5 Rinehey v. Stryker, 26 How. 15. * Anderson v. Hunn, 5 Hun, 19; Baskins v. Shannon, 3 N. T. (3 Comst.) 310. 4 Thompson v. Van Vechten, 27 N. Y. 568. * Baskins v. Shannon, 3 N. Y. (3 Comst.) 310; Hanford v. Artcher, 4 Hill, 271. VALIDITY OF CHATTEL MORTGAGES. 491 ness. 1 So also a partner has such a lien on the partnership property as entitles him to a judgment setting aside fraudulent 6ales or incumbrances made by his copartner. 2 A purchaser of the mortgaged chattels, or of any interest therein, or the holder of any subsequent lien thereon, providing that his claim has not, by the contract under which he claims, been limited to the equity of redemption, may resist the enforce- ment of the mortgage on any ground which would have con- stituted a valid defence for the mortgagor. Thus a judgment and execution creditor of the mortgagor who has caused a levy to be made upon the mortgaged chattels, may avoid the mort- gage for usury. 3 Ordinarily a man cannot be heard to allege his own fraudu- lent acts as grounds for relief in a court of justice, and what he cannot do his representatives are equally barred from doing. But it is provided by Laws of 1858, c. 314, " that any executor, administrator, receiver, assignee, or other trustee of an estate, or the property and effects of an insolvent estate, corporation, asso- ciation, partnership or individual, may for the benefit of cred- itors or others interested in the estate or property so held in trust, disaffirm, treat as void, and resist all acts done, transfers and agreements made, in fraud of the rights of any creditor, in- cluding themselves and others, interested in any estate or prop- erty held by or of right belonging to any such trustee or estate." How the Question of the Validity of a Chattel Mortgage may he Contested. If a judgment creditor of the mortgagor shall contend that the mortgage is fraudulent and void, he may, if he elects to do so, treat it as a nullity, and by indemnifying the sheriff pro- cure a levy and sale to be made. The question of the validity of the mortgage will, in such a case, be tested in an action brought" by the mortgagee for the value of the property or to reclaim possession of it ; unless the mortgagee shall see fit to 1 Anderson v. Htmn, 5 Hun, 79"; contra, Thompson v. Van Vechten, 6 Bosw- 373 ; rev'g s. o. 5 Abb. 458. 2 Wade v. Rusher, 4 Bosw. 537. 3 Carow v. Kelly, 59 Barb. 239 492 THE LAW OF MORTGAGES. surrender his claims without a contest. If such an action be brought, the creditor will prevail if the mortgage be declared to be fraudulent. 1 So a junior mortgagee may take possession under his mort- gage, and in the action at law in which he shall seek to maintain his right to possession, or in which he shall endeavor to defend himself against a claim for damages, the question of the validity ■of the security may be litigated and determined. 2 Relief against a fraudulent chattel mortgage may also be iound by an action in the nature of a suit in equity, in which the instrument may be declared to be void, and in which, also, the remedies peculiar to a court of equity, including the ap- pointment of a receiver, and the granting of an injunction may be obtained. 8 , Any person who has an interest in or a lien 'upon the mort- gaged property, has a right to appeal to a court of equity in order to prevent the enforcement of a void prior security by which his rights in or upon the property would be destroyed ; and the fact that he would have an action at law for damages, against the holder of such void prior security would not be any answer to his claim for relief. He would not be required to surrender a lien upon the property, or a title to it, and be com- pelled to rest upon the personal responsibility of the holder of the prior lien, which might or might not be available when an execution should be issued against him. 4 As soon as an execution, issued upon a valid judgment, is placed in the hands of the sheriff, and without any levy having been made thereon, the judgment creditor acquires a valid lien upon all of the personal property belonging to the debtor and not exempt from execution, situated within the jurisdiction of the officer. Until the levy is made, the lien is liable to be de- feated by the title of a purchaser in good faith, but, as between the plaintiff in the execution and all persons except a bona fide purchaser, the lien is as valid before the levy is made as it is 1 Delaware v. Ensign, 21 Barb. 85 ; Rinchey v. Stryker, 26 How. 75 ; Frost v. Mott, 34 N. T. 253. 2 Basiins v. Shannon, 3 N. Y. (3 Comst.) 310. 3 Anderson v. Hunn, 5 Hun, 79. * Anderson v. Hunn, 5 Hun, 19. VALIDITY OF CHATTEL MORTGAGES. 49$ afterward. 1 This lieu is entitled to protection, and the assistance of a court of equity may be invoked to remove an obstruction which has fraudulently been placed in the way of its complete enforcement. 8 A creditor may, therefore, maintain an action to- set aside a mortgage upon chattels, as fraudulent and void, aa soon as his execution is in the hands of the sheriff. He is not required to procure the officer to rua the risk of committing a trespass, if the mortgage is finally adjudged to be valid, neither is he compelled to wait until the execution has been returned unsatisfied. 3 There is a substantial difference between an action to remove an impediment which has fraudulently 'been created in order to obstruct a specific lien, and an application to a court of equity to reach equitable assets of a debtor. In the first case, it is only necessary that the creditor shall have tried to enforce his lien, and that he has been met by the impediment. In the latter case the creditor can show no title to the rights of action of the - debtor until he has exhausted his legal remedy. In the one case the application is for aid to enforce legal rights ; in the other it is for equitable relief entirely. The issuance of an ex- ecution gives a legal lien upon chattels, and equity will remove a fraudulent mortgage which prevents the lien from ripening into a levy and sale." But the issuance of an execution, or even a formal levy, does not create a lien upon a mere chose in ac- tion, or a mere equitable interest in personal property which is not liable to be sold on execution, and in such cases the actual return of the execution unsatisfied is necessary to entitle the creditor to the assistance of a court of equity to obtain satisfac- tion out of the equitable property of the defendant. 4 > 2 R. S. 365, §§ 13, IT; Hale v. Sweet, 40 N. Y. 97. 5 Beck v. Burdett, 1 Paige, 305. 8 See the very elaborate opinion of Bockes, J., in Stewart v. Beale, 1 Hun, 405. 4 Beck t. Burdett, 1 Paige, 305. CHAPTER XXXIX. FILING OF CHATTEL MORTGAGES. When, Where, and How Chattel Mortgages should be Filed, It is enacted, by Laws of 1833, c. 279, that every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be abso- lutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed as directed by said act.' The instruments mentioned in the act are required to be filed in the several towns and cities of this State, where the mortgagor therein, if a resident of this State, shall reside at the time of the execution thereof ; and if not a resident, then in the city or town where the property so mortgaged shall be at the time of the execution of such instrument. In the city of New York such instrument must be filed in the office of the register of said city. In the several cities of this State, other than the city of New York, and in the several towns in this State in which a county clerk's office is kept, in such office ; and in each of the other towns in this State, in the office of the town clerk thereof. Such register and clerks are required to file all such instruments presented to them respectively for that purpose, and to indorse thereon the time of receiving the same, and also to deposit the same in their respective offices, to be kept there for the inspection of all persons interested. 1 1 Laws of 183S, c. 279, § 2. FILING OF CHATTEL MORTGAGES. 495 This statute does not repeal the statute concerning fraud- ulent conveyances. If a mortgagor of chattels retains the pos- session of them, the legal presumption still is that the mortgage is fraudulent ; the filing of the mortgage does not rehut the presumption of fraud arising from the non-delivery of the prop- erty, neither does it excuse the party claiming under the mort- gage from showing affirmatively that the mortgage was made in good faith, and without any intent to defraud creditors or purchasers. 1 The act of 1833 only adds another to the grounds on which a mortgage of personal'chattels may be void. 8 Prior to the passing of that act, a chattel mortgage might be good, al- though the possession of the property continued with the mort- gagor. It was open to explanation,' and if the explanation was satisfactory to the court and jury, the mortgage was valid, not- withstanding there was no change of possession of the mort- gaged property. 3 A further condition has been imposed by the act of 1833, to wit, that the mortgage shall be filed and refiled according to the terms of that statute. 4 The statute does not avoid the mortgage merely as to so much of the property as remains in the possession of the mort- gagor. The mortgage itself is declared void if not filed as directed by the act, when ij is not accompanied by an imme- diate delivery, and followed by an actual and continued change of possession of the things mortgaged. A change of possession as to part of the property included in the mortgage is not a change of possession of the things mortgaged within the intent and meaning of the statute. The mortgage must therefore be filed unless there -is an immediate delivery of the whole prop- erty embraced therein and a continued change of possession, or such mortgage is made absolutely and wholly void, as to cred- itors, by the express terms of the statute. 5 If the mortgagor is a resident of this State, the mortgage, or a true copy thereof, must be filed in the city or town where ' Otis v. SU1, 8 Barb. 102 ; contra, Lee v. Huntoon, Hoff. 447. ' Wood v. Lowry, 17 Wend. 492; Smith v. Acker, 23 Id. 653. 3 Barrow v. Paxton, 5 Johna. 258 ; Bissell v. Hopkins, 3 Cow. 166 ; Hall y. Tnttle, 8 Wend. 391 ; Smith v. Acker, 23 Wend. 653. 4 Newell v. Warren, 44 N. T. 244, 248. » Per Chancellor Walworth, in Benedict r. Smith, 10 Paige, 126, 128. 496 THE LAW OF MORTGAGES. the mortgagor resided at the time when the mortgage was exe- cuted. The place of residence of the mortgagor at the time when the mortgage is filed is immaterial ; 1 and if it be not filed at the place of residence of the mortgagor at the time of its. execution, a subsequent tiling in the town to which the mort- gagor removes will not give vitality to it as against creditors, and subsequent purchasers. 2 The actual place of residence of the mortgagor will control, and an erroneous recital in the mort- gage will not conclude the mortgagee. 3 If a corporation be a mortgagor it will be deemed to have a residence at its place of business ; ' and a railroad is said to have a residence in all the towns in which any part of its line is- located. 5 If the mortgagor be a resident of this State, it will make no difference where the mortgaged property may be situated ; 6 but if he be a non-resident, the mortgage, or a copy of it, must be filed " in the city or town where the property so mortgaged shall be at the time of the execution of such instrument." 7 The papers are required to be filed in the office, of the regis- ter and in the offices of the town clerks. It is not sufficient that they be delivered to those officials while absent from their offices. Where a mortgage was handed to the county clerk while absent from his office, to be filed therein, at ten o'clock on Saturday evening, and the clerk marked and indorsed it as- filed at that hour, but did not in fact take it to or deposit it in the office until nine o'clock in the forenoon on the following Monday, the mortgage was held to be subsequent to a levy made at eight o'clock on Monday morning. 8 If there be no clerk, or if he be absent, the mortgage may be filed with the- person in charge of the clerk's office. 9 1 Hicks v. Williams, 17 Barb. 523. 2 Powers v. Freeman, 2 Lans. 127. 3 Chandler v. Bunn, Lalor, 169. " Pond v. Hudson River R. R. Co. 17 How. 543 ; Conro v. National Protection. Ins. Co. 10 Id. 403 ; Louisville R. R. Co. v. Letson, 2 How. (U. B.)479. £ Buffalo Swift v. Hart, 12 Barb. 530. , 6 Nitehie v. Townsend, 2 Sandf. 299. FILING OF CHATTEL MORTGAGES. 499 In Nexoell v. Warren (44 N. Y. 244 ; rev'g s. c. 44 Barb. 258), the Court of Appeals gave the statute another construc- tion, by«holding that only one refiling was necessary. When thus refiled, the mortgage became a completed security, and no further filing was necessary to make it a continuing security .~ It is evident that the statute did not, by its terms, require any further filing, and it is remarkable that for nearly forty years- the profession construed the enactment by the practice under it,, rather than by the language used by the Legislature. This decision was rendered in December, 1870, and the Legislature, in 1873, amended the act of 1833 by enacting that " every mortgage filed in pursuance of this act, shall cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of each and every term of one year after the filing of such mortgage, a true copy of such mortgage, together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by vir- - tue thereof, shall be again filed in the office of the clerk aforesaid of the town or city where the mortgagor shall then reside.' 7 ' v There can be no doubt of the necessity of successive re- filings under the present statute. The first refiling must be made within thirty days next preceding the expiration of a year after the first filing ; the second refiling within thirty days next preceding the expiration of two years after the first filing, and so on. The time must be calculated in each case from the original filing, and not from the last refiling, and in this respect "the statute makes a change in • the former practice. Sunday should be counted as one, though it be the last of the thirty days. 2 The statute must be strictly complied with, and a filing before the commencement of the thirty days would be just as. nugatory as one after the expiration of that time. 8 The statute requires the paper to be " again filed." This, seems to imply, in literal significance, a refiling — a second filing of the same paper — that is, the filing again of the paper pre- : Laws of 18Y3, c. 501. ! Nitchie v. Townsend, 2 Sandf. 299. 3 Newell v. "Warner, 44 Barb. 258 ; rev'd on other grounds, 44 N. Y. 244, 500 THE LAW OF MORTGAGES. Yiously filed. This is not considered necessary ; a true copy ■can be filed in the first instance and another true copy, or the original mortgage, can be filed at the proper time by, way of refiling. 1 In was said in Swift v. Hart (12 Barb. 530), that the re- filing of a chattel mortgage more than a year after the filing is equivalent to an original filing under the statute, as against a creditor whose execution is levied within a year after the refiling. But in Marsden v. Cornell (5 K Y. Sup. [T. & C] 27 ; 2 Hun, 449 ; s. c. afli'd 62 JST. Y. 215), the doctrine of Swift v. Hart was overruled, as tending to render inoperative the ex- press provisions of the statute. After a mortgage has once been filed the statute declares that it shall " cease to be valid " after one year, unless it be refiled with a proper statement of the mortgagee's interest. It is the mortgage itself which ceases to be valid, and not merely the registration of it, and it cannot have its validity restored by a new filing. If such a construc- tion were permitted, the statement required by the act might be entirely omitted, and the mortgage might, nevertheless, be kept on foot by virtue of the misnomer of calling a refiling an •original filing. The refiling is required to be "in the office of the clerk -aforesaid of the town or city where the mortgagor shall then reside." If the mortgagor should be a non-resident, or if he should leave the State, and if, during the thirty days next pre- ceding the close of the year, he did not reside in it, it would be impossible for the mortgagee to comply with this provision. !No other place for refiling the mortgage is named, except the place of residence of the mortgagor ; the statute declares that if it be not refiled at the residence of the mortgagor, it shall cease to be valid, and the conclusion necessarily is that the mortgage will cease to have any force as against creditors and subsequent purchasers, as well when the refiling is rendered impossible as when it is omitted for any other reason. 3 1 Stockham v. Allard, 2 Hun, 67. 2 Dillingham v. Bolt, 37 N. Y. 198. FILING OF CHATTEL MORTGAGES. 501 Statement of Mortgagee's Interest on Refiling. With the copy of the mortgage filed to continue the lien, there must also be filed " a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof." * The object of the statute was to furnish a fair and reasonable notice to creditors and subsequent purchasers, and to prevent them from being misled by the possession and apparent ownership of the mortgagor. The statement required by the statute has universally been understood to be a statement of the amount remaining Unpaid upon the mortgage, and such was undoubtedly the intention of the Legislature in the use of the expression. In the absence of fraud, or perhaps of gross negli- gence, it is not necessary to the preservation of the validity of the mortgage, that the statement should be entirely definite and accurate to the smallest amount. No doubt if the mortgagee should fraudulently make a false statement, by which the amount remaining unpaid should be willfully exaggerated ; or should willfully, and with a view to hinder, embarrass or mislead creditors or purchasers, make a statement so vague and indefinite as not to answer the substantial object and purpose of the statute, the statement would be held insufficient and void. And perhaps a grossly inaccurate or vague statement, even without any fraudulent intent, where it appeared that the mortgagee had the means of making it accurate and definite, might be held not to be a compliance with the statute. 3 But where the state- ment is made in good faith, with reasonable care, and is sub- stantially correct and accurate, the mortgagee will have com- plied with the spirit and intent of the statute. 3 In Dillingham v. Bolt (37 1ST. Y. 198), the statement was that " somewhere about the sum of $60, as near as can be ascer- tained," remained unpaid upon the mortgage. The sufficiency of the statement was necessarily assumed by the General Term of the Supreme Court, and appears by the opinion to have been conceded by the Court of Appeals. , J Laws of 1833, c. 2Y9, §3, as am'd by Lxws of 1873, c. 501. 2 Ely v. Carnley, 19 N. Y. 496 ; affi'g a. c. 3 E. D. Smith, 489. - Per Talcott, J., in Patterson v. Gillies, 64 Earb. 663 502 THE LAW OF MORTGAGES. Where the mortgagee, thirty days before the expiration of a year from the first filing of the mortgage, procured the clerk to indorse upon it " refiled and renewed," with the date, this was held not a sufficient statement under the act. 1 So a memoran- dum written with pencil on the back of the copy filed, as fol- lows : " No interest to date," was held not to be a compliance with the law. It was also objectionable as being easily obliter- ated or changed. 2 If the statement be for too small an amount, it will not in- yalidate the mortgage for the amount stated, but the mortgagee .cannot collect more than the amount stated to be due, unless -other interested parties have actual notice of the amount. "Where the statement refers to other papers filed with it, so that the amount claimed to be due can be arrived at, this will be sufficient. 3 When Filing is Unnecessary. If the mortgage be accompanied by an immediate delivery, •and be followed by an actual and continued change of posses- sion, the statute will not apply ; the possession of the mortgagee will be more than a substitute for fifing ; it will be an evidence of good faith, and the burden of proof will rest upon the 'cred- itor or purchaser alleging fraud. This is the case of all pledges, and the rule will include all assignments of mortgages and of other choses in action by way of security, which are really pledges. 4 So a delivery of a bill of lading as collateral to a note is a delivery of the property, and the papers need not be iled. 5 There are cases of mortgages where an actual manual de- livery of the property is impossible, and where the want of a change of possession is not evidence of a fraudulent intent ; as, if the property is in the possession of a third person. In such ^ — 1 Fitch t. Humphrey, I Den. 163. 2 Theriot v. Prince, 1 Edm. Sel. Cas. 219. 3 Beers v. Waterbury, 8 Bosw. 396. 4 Haskins v. Kelly, 1 Abb. N. S. 63 ; a. o. 1 Eobt. 160 ; see Tyler v. Strang, 21 Barb. 198. 5 First Nat. Bank of Cincinnati v. Kelly, 57 N. Y. 34. FILING OF CHATTEL MORTGAGES. 503 a case filing is not necessary, and nothing short of actual fraud will invalidate the mortgage. 1 When the mortgagee takes the property into his actual pos- session, this will be a substitute for filing, and the mortgage may be shown to be valid as against creditors whose liens did not attach, or purchasers or mortgagees whose rights were not acquired until after that time. 2 It has even been held that if the mortgagee, having filed his mortgage, commences proceed- ings to enforce the forfeiture, or to sell the equity of redemp- tion, before the year from the filing of the mortgage has elapsed, this will render a refiling unnecessary, and that causing the prop- erty to be advertised for sale is sufficient. 3 , The only transfers of chattels which are required to be filed are those which are intended to operate as mortgages. Abso- lute assignments of personal property, though prima facie fraudulent if not accompanied- by possession, gain nothing by being filed. So the assignment of a chattel mortgage need not be filed, the provisions of the statute having no application to rights of creditors of the mortgagee. 4 But an instrument which upon its face purports to be an absolute assignment, should be filed if it is intended to operate as a security, and if it is not accompanied by a change of possession. 5 The statute under consideration has no application to mort- gages of interests in land, 6 but if a mortgage covers both real and personal property it is, as to the personalty, a chattel mort- gage, and should be filed. 7 Neither does it apply £o a mortgage of a registered British vessel executed abroad ; but it relates only to mortgages executed within this State, or upon property which is here at the time. 8 Although, after default, the mortgagee's title to the mort- gaged property becomes absolute, it is still necessary, until actual possession is taken by him, that the mortgage be filed, 1 Nash v. Ely, 19 Wend. 523; Archer v. Hubbell, 4 Wend. 514; Goodwin v. Kelley, 42 Barb. 194; Smith v. Post, 1 Hun, 516. 5 Levin v. Russell, 42 N. Y. 251. 3 Otis v. Sill, 8 Barb. 102. * Baxter v. Gilbert, 12 Abb. 91. 6 Tyler v. Strang, 21 Barb. 198. 6 Breese v. Bange, 2 E. D. Smith, Hi. ' Stewart v. Beale, 1 Hun, 405. 8 Fairbanks v* Bloomfield, 5 Duer, 434. 504 THE LAW OP MORTGAGES. and that it be kept alive by refiling. 1 Any other rule would! work a complete evasion of the statute. If it were unnecessary to file a mortgage after forfeiture, mortgages could easily be drawn so as to be due at once, or in one day after date, and the necessity of filing would be completely avoided. The filing or refiling after a default being necessary to the protection of the mortgagee against -creditors and others, is not a waiver of the forfeiture. 8 Where a mortgage is made by a railroad of its real estate- and rolling stock, the question has been raised as to whether such mortgage, in addition to being recorded as a mortgage of real estate, should not also be filed as a mortgage of chattels. It was claimed that the rolling stock is merely accessory to £he real estate, that it partakes of the nature of realty, being in law fixtures, and that therefore filing ,is unnecessary. 3 But this view has not prevailed in our courts of final resort, and it has been held that the rolling stock of a railroad is not a part of the realty, but retains its cliaracter as personal property, and that a, mortgage of such property is governed by the same rules with regard to filing, as other mortgages of chattels. 4 The question was also set at rest by Laws of 1868, c. 779, which enacted that it should not be necessary to file as a chattel mortgage, any mortgage which had been or which should thereafter be exe- cuted by any railroad company upon real and personal prop- erty, and which had been or should be recorded as a mortgage of real estate in each county in or through which the railroad runs. Who may lake advantage of Omission to File a Chattel Mort- gage. If the mortgage be not filed as is required by the statute, it is declared to be absolutely void " as against the creditors of the 1 Gould v. Brown, 4 N. Y. Leg. Obs. 423; Manning v. Monaghan, 1 Bosw. 459 ; Porter v. Parmley, 52 N. Y.. 185. 2 Hulsen v. Walter, 34 How. 395. 3 Bement v. Plattsburgh state at the sale the nature of the interest which he pro- poses to sell. But, since the sheriff cannot impair the mort- gagee's legal rights even if he wishes to do so, he will not be legally liable in trover or trespass for selling the goods gener- ally, without mentioning the mortgage. 2 The fact that a sale by the sheriff will not necessarily inflict damage upon the mortgagee which the law will recognize, is a sufficient reason for holding that no action will lie against him in trover or trespass ; but a still stronger reason is, that where the sheriff can sell at all, the mortgagee is neither in possession nor entitled to possession, and he has, therefore, ho legal right to maintain either of these actions. 3 For the same reason the mortgagee cannot maintain replevin as against the sheriff in such cases. 4 In what Lots or Parcels the Property should he Sold'. The statute in relation to executions against property pro- vides that personal property shall be offiered in such lots and parcels as shall be calculated to bring the highest price. This.. will generally be by dividing it in such a way as to accommo- date numerous bidders ; but the rule will be different where a. ! Per Denio, J., in Hull t. Carnley, 11 N. Y. (1 Kern.) 501, 506. 8 Hull v. Carnley, 11 N. Y. (1 Kern.) 501 ; 6. o. 11 N. Y. 202 ; Van Antwerp v. Newman, 2 Cow. 543 ; Porter v. Parmley, 62 N. Y. 185, 190 ; Manning v. Mon- aghan, 23 Id. 639 ; s. o. 28 Id. 585. 3 Hull T/Carnley, 11 N. Y. (1 Kern.) 501 ; s. c. 11 N. Y. 202 ; Bradley v. Cop- ley, Mann. Gr. and Scott, 685 ; Gordon v. Harper, 1 Term E. 9 ; Goulet v. Asseler, 22 N. Y. 225 ; contra, Brown v. Cook, 3 E. D.. Smith, 123. 4 Carpenter v. Town, Lalor, 72. 33 514: THE LAW OF MORTGAGES. number of kinds of property are subject to a mortgage, and in such case there will be a necessity for selling in one parcel. If it be put up in several lots, it would not be likely to bring any- thing ; for unless one man purchased the whole, he would not acquire the equity of redemption ; and one of several purchasers would have no remedy at law, if he could in equity, to compel other purchasers to contribute towards the satisfaction of the • mortgage debts. The purchaser of part of the property would have no right to redeem pro tcmto. The mortgagees could not be compelled to receive a part of their debt and to relinquish the lien as to a part of their property. When the sheriff sells personal property subject to a mortgage, the- proper course is to sell the whole in one parcel. 1 If chattels mortgaged together be sold in separate parcels, a purchaser of any one parcel may take an assignment of the mortgage to protect his title. This will be the more prudent course, for if he pays it this' will discharge the other property, but if he takes an assignment it will continue a valid security in his hands. 2 While the sheriff should properly sell all of the property covered by the mortgage in one parcel, the mortgagee cannot maintain trespass or trover against him if he not only omits to disclose the existence of the mortgage at the sale, but also sells in separate parcels, so that the mortgaged chattels are scattered in the hands of numerous purchasers. Legally the mortgagee does not lose his lien, though it might be inconvenient for him to trace the property after such a sale, and no right of property is therefore violated ; but the principal reason why the actions could not be obtained is because the mortgagee had no right of possession when the trespass or the conversion was committed. 3 Remedy of the Mortgagee where a Sale is made in an Im- proper Manner. But while the mortgagee cannot recover damages from the sheriff and other persons aiding him in selling the mortgaged 1 Per Bronson, Ch. J., in Tifft t. Barton, i Deri. 171; Manning v. Monaghan, 83 N. Y. 539, 549. ! Brown v. Rich, 40 Barb. 28. 3 Goulet v. Asseler, 22 N. T. 225 ; contra, Brown v. Cook, 3 E. D. Smith, 123. TAKING MORTGAGED CHATTELS UPON EXECUTION. 515 property in such a way that the mortgage security becomes of little value, it by no means follows that he is entirely without remedy. To test the principle involved, it is legitimate to sup- pose the strongest possible case. A. may have a mortgage upon the grocery stock of B., consisting wholly of provisions, liquors, teas or other articles fit only to be eaten and drank. While the security has yet a year to run, the mortgagor having the right of possession, his execution creditor or the receiver of his prop- erty may seize and sell the stock. This is lawful if the seizure and sale be properly made. But the sale may be made at auc- tion on successive days, in a thousand parcels and to a thousand purchasers, without recognition of the mortgage and with the intention to destroy its value. After the lapse of a year, the right of possession accrues to the mortgagee, but it comes too late. The property is not only dispersed but consumed, and the lien of the mortgage is consequently good for nothing. It can- not be said that here are not injury as well as wrong to the mortgage creditor. For every wrong attended with loss and damage, the law affords a remedy. The existence of a mort- ■ gage upon personal estate may not prevent creditors from seizing and selling it to satisfy their just demands, but an attempt to sell in contravention of the lien is an attempt to do a wrong and in- flict a loss. An actual injury may or may not result. If it does result, the logical consequence is, that an action will lie founded on the special facts. 1 Such an action would at common law be termed an action on the case, and the distinction between it and an action of trover or trespass is important. In trespass and trover, before the Code, the plaintiff recovered, if at all, upon the ground that he was the owner of the property in controversy. The measure of damages in all such cases, therefore, was the value of the property taken or converted. Although it appeared that the plaintiff held the title as mere security for a debt, and that his debtor was abundantly able to pay, so that his actual loss was nothing, his recovery, in cases where he recovered at all, was nevertheless for the full value of the property, provided that it did not exceed the amount of his lien. In a special action on 1 Per Comstook, Ch. J., in ManniDg v. Monaghan, 23 N. Y. 539, 546. 516 THE LAW OF MORTGAGES. the case, on the contrary, the plaintiff could, nnder no circum- stances, recover more than the damages shown to have been sus- tained. He must prove to what extent his security was im- paired, by showing whether the debtor was or was not respon- sible, and whether or not it was in his power to follow and en- force his lien against the property. 1 The subject under consideration was said by Comstook, Ch.. J., in Manning v. Monaghan (23 N". Y. 539, 548), to suggest the following propositions : 1. When chattels are covered, by a valid mortgage, with a continuing right of possession in the mort- gagor, his interest, and that only, can be rightfully taken and sold on behalf of his creditors, and with the sale possession may be delivered. 2., The mortgagee has no legal ground of action, although the sale is hostile to his right, provided the property is not dispersed or placed beyond his reach. Actual injury must be the ground of his complaint. 3. Property covered by a mortgage should be sold in mass and subject to the lien. If, being sold otherwise, it is scattered and dispersed, the proceed- ing is both a wrong and an injury, provided the mortgagor is insolvent and the debt is not otherwise secured. For such an injury an action will lie. 1 Per Selden, J., in Goulet v. Asseler, 22 IT. Y. 225, 228, and Denio, J., Id. p. 236. CHAPTEE XLI. MORTGAGES ON SHIPS AND VESSELS. Filing and Recording Mortgages on Ships and Vessels. It was provided by Laws of 1858, c. 247J that any person • having any lien or incumbrance on any canal boat, steam tug, scow or other craft navigating the canals of this State, by a chattel mortgage duly filed, may make a statement in writing, setting forth the nature of his claim, the time when the same arose, the manner in which it originated, and the amount of such lien or incumbrance ; and may annex thereto an affidavit, made by himself or his agent or attorney, that the said state- ment is correct, and the claim just and true, and file the same in the office of the auditor. All claims and liens by chattel mortgage, a statement of which shall be filed as provided in the act, were, from the time of such filing, to have preference and priority over all other claims and liens, in the same manner and to the like extent of claims and liens arising on chattel mort- gages filed and entered in towns where the mortgagor resides, but they were not to have any priority over existing liens and claims. This statute did not require any paper to be filed in the office of the auditor, though it permitted such filing, and no penalty was laid down for an omission to file. The utmost effect which could be allowed to the statute, was to put mort- gages which were registered in the auditor's office upon an equality with those properly recorded in the town clerk's office. 1 The statute of 1858 was materially amended by Laws of .1864, c. 412, which provided that thereafter any person having 1 Sweet T. Lawrence, 35 Barb. 337. 518 THE LAW OF MORTGAGES. any lien or incumbrance on aliy canal boat, steam tug, scow, or other craft navigating the canals of this State, by a chattel mortgage, should file the same, or a true copy thereof, in the office of the auditor of the canal department. It also declared that every mortgage or conveyance intended to operate as a mortgage of any canal boat, steam tug, scow or other craft navi- gating,the canals of this State, together with the appurtenances belonging thereto and used in navigating such craft, thereafter made, which should not be accompanied by an immediate de- livery, and followed by an actual and continued change of pos- session of the property mortgaged, should be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, should be filed as directed by the act. This statute also contained a provision to the effect that every mortgage filed in pursuance of it, should cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless, within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, together with a state- ment exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof, should be. again filed. This latter provision is similar to that contained in the act of 1833 relative to the filing of chattel mortgages in the offices of the town clerks, previous to the amendment of 1873, and a single refiling at the end of the first year is all that is required j successive annual refilings are not necessary. 1 The act of 1864, directing mortgages on ships to be filed in the office of the auditor, does not in any way abrogate the pro- vision of law which requires all chattel mortgages to be filed in the offices of the town clerks where the respective mortgagors, reside. It merely adds another condition with which the holder of a mortgage on a vessel must comply, if he desires to retain his lien. If he omits to file his mortgage in the office of the town clerk, and if the mortgagor retains possession, it will 1 Newell T. Warren, 44 N. Y. 244 ; rev'g s. c. 44 Barb. 258. MORTGAGES ON SHIPS AND VESSELS. 519' be absolutely void. 1 If he omits to file it in the office of the auditor, and if the mortgagor retains possession, it will be abso- lutely void. 2 Both things must be done, or the mortgage will be without force as against creditors of the mortgagor and sub- sequent purchasers and mortgagees in good faith. 3 The national legislature has provided for the registration and enrollment of vessels, and for the recording of assignments and mortgages of them, and no bill of sale, mortgage, hypothe- cation or conveyance of any vessel, or part of any vessel, of the United States, is valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothe- cation or conveyance is recorded in the office of the collector of the customs where such vessel is registered or enrolled. The lien by bottomry on any vessel, created during her voyage, by a loan of money or materials necessary to repair or enable her to prosecute a voyage, does not, however, lose its priority, or is not in any way affected by these provisions. 4 It has been held that the enactment of this statute was a proper exercise of the exclusive jurisdiction of Congress, under the Constitution of the United States, to regulate commerce with foreign nations and among the several States, and that it excludes all State legislation in respect to the same subject. 5 If, therefore, a vessel comes within the meaning of the statute, that is, if it is a " vessel of the United States," a mortgage of it will be valid if it be properly recorded in the custom house, without the observance of any of the formalities prescribed by State laws. A mortgage of such a vessel also, even if unre- corded, is valid as against all persons having actual notice thereof, and the provisions of the local law in favor of creditors 1 Laws of 1833, c. 279, as amended by Laws of 1873, c. 501 ; ante, p. 494. 2 Laws of 1864, c. 412. 8 See Marsden v. Cornell, 62 N. T. 215, which throws a doubt upon the state- ment in the text, though the question was not raised. 4 Revised Statutes of the U. S., tit. Commerce and Navigation, § 4192. 5 White's Bank v. Smith, 7 Wall. 646 ; Aldrich v. iEtna Ins. Co. 8 Id. 491 ; rev'g s. 0. 26 N. Y. 92; Best v. Staple, 61 N. Y. 71. These decisions also overrule Horton v. Davis, 26 N. Y. 496 ; Thompson v. Van Vechten, 5 Abb. 458. 520 THE LAW OF MORTGAGES. of the mortgagor when the mortgage is improperly filed, will not avail them if they have notice of the mortgage. 1 The question still remains as to what is a " vessel of the United States." Section 1 of the act of Congress of December 31, 1192, provides that ships or vessels which shall have been reg- istered as required by the law, and " no other (except such as shall be duly qualified according to law for carrying on the coasting trade and fisheries, or one of them), shall be denominated and deemed vessels or ships of the United States, entitled to the benefits and privileges appertaining to such ships or vessels, pro- vided that they shall not continue to enjoy the same longer than they shall continue to be wholly owned and to be com- manded by a citizen or citizens of the United States." 3 Section 1 of the act of February 18, 1793, in reference to enrolling and . licensing vessels to be employed in the coasting trade, provides that ships or vessels enrolled according to the law, and having a license in force, as required by the act, and " no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade or fisheries." 3 These acts contain provisions showing what vessels can be registered, enrolled and licensed, and the manner in which, and the place where it may be done ; and they define what are vessels of the United States. 4 If a mortgage is made the foundation of rights which are sought to be. enforced in the courts of this State, the mortgaged property being also within their jurisdiction, the presumption is that the laws of this State apply and control. If, therefore, it is claimed that a mortgaged vessel is a " vessel of the United States," so as to render our statutes relative to the filing of chattel mortgages, inapplicable, the facts which render it such must be proven. 5 It has been held that a canal boat, engaged in navigating our •canals and the Hudson river, is not a " vessel of the United 'States " employed in the coasting trade ; that it need not be en- rolled or licensed, and that it is not within the statute requiring 1 Best t. Staple, 61 N. Y. 71. 2 1 Bright. Dig. 823. 3 1 Bright. Dig. 138. - 4 -Per Earl, C, in Best v. Staple, 61 N. Y. 71, 76. s Best v. Staple, 61 N. Y. 71. MORTGAGES ON SHIPS AND VESSELS. 521 transfers and mortgages to be recorded in the office of the col- lector of customs. 1 The rule would probably be different if the boat, in any part of its voyage, should travel upon the high seas. Proving a Mortgage on a Vessel in Judicial Proceedings. As a matter of practice it will not be advisable to file the original of a chattel mortgage on a vessel, either in the office of the town clerk or the office of the auditor of the canal depart- ment, since a certified copy of it from either of those offices will only be evidence of the fact of filing. 2 By Laws of 1862, c. 251 (as amended by Laws of 1865, c. 512), " the record of any bill of sale, mortgage, hypothecation or con- veyance of any vessel of the United States, duly recorded in the office of the collector of customs where such vessel is registered and enrolled, or a transcript or copy thereof, duly certified by said collector, may be read in evidence in any of the courts of this State, and in any judicial proceedings in this State, with the like force and effect as the original bill of sale, mortgage, hypothe- cation or conveyance ; provided, however, that the execution of such bill of sale, mortgage, hypothecation or conveyance shall, before having been so recorded, have been acknowledged by the party or parties executing the same, or proved by a subscribing witness thereto in the same manner in which. conveyances of real estate are required to be acknowledged so as to entitle the same to be recorded in this State." - Liability of Mortgagees of Ships for Supplies and Pepairs. An owner of a ship, in possession of her, and having both the legal and equitable title, is liable for all supplies furnished, and all repairs made to her, and all work and service rendered for her benefit by order of the master, and in general for all the contracts made by him for the benefit of the vessel ; be- cause from the necessity of the case, the master is invested with 1 Hicks v. Williama, 17 Barb. 523. 2 Laws of 1833, c. 279, as amended by Laws of 1873, c. 501 ; Laws of 1864, c. 412. 522 THE LAW OF MORTGAGES. a very wide authority to do and provide- whatever is requisite for his ship. 1 A mortgagee of a ship, especially after forfeiture, is the legal owner, and under some circumstances, incurs the liabilities of an owner for repairs and supplies. The question was long mooted as to whether a mortgagee, even though not in possession, was liable in this way, and it was doubted as to whether it was not possible, at least, that a mortgagee might ex- pose himself to a loss by the very act from which he expected a security. 8 If a mortgagee takes possession, and especially if he takes out a new register in his own name, or if he does any acts which can be deemed in some degree equivalent to public no- tice that he is owner, this actual or apparently actual possession,' added to his legal title as owner, seems to confer upon him the responsibilities and liabilities of an owner. 8 But a mortgagee who does not have the possession and con- trol of a ship, does not authorize the world to consider him the owner, and the great preponderance of authority is now in favor of the proposition that a mortgagee not in possession is not liable. 4 This is the rule even though the ship be registered in the name of the mortgagee. 5 And even if a person takes a bill of sale of a vessel, absolute in its terms, and is registered as owner, and the person furnishing the supplies consulted the record at the custom house and gave credit to him as owner, he is not liable as such, if the bill of sale was intended as collateral security, and he has never taken the vessel into his possession or control, or exercised any acts of ownership. 6 The mortgagee 1 1 Pars, on Shipping, 125. 2 Abbott on Shipping, 19, n. 3 1 Pars, on Shipping, 126; Champlln v. Butler, 18 Johns. 169; Miln v. Spinola, 4 Hill, 177 ; Hodgson v. Butts, 3 Cranoh, 140 ; Tucker v. Boffington, 16 Mass. 477 ; Hesketh v. Stevens, 7 Barb. 488 ; Dean v. McGhie, 4 Bing. 48. 4 Ring t. Franklin, 2 Hall, 1 ; BirkWk v. Tucker, 2 Id. 121 ; Miln v. Spinola, 4 Hill, 177 ; Hesketh v. Stevens, 7 Barb. 488 ; Mclntyre v. Scott, 8 Johns. 159 ; Brooks v. Bondsey, 7 Pick. 441; Winslow v. Tarbox, 18 Me. 132; Cutler v. Thurlo, 20 Id. 213 ; s. c. 1 Kent, 133 ; Howard v. Odell, 1 Allen, 85 ; Blanchard v. Fearing, 4 Id. 118. 6 Weber v. Sampson, 6 Duer, 358 ; Rice v. Cobb, 9 Cush. 302 ; Langton v. Horton, 5 Beav. 9. ° Howard v. Odell, 1 Allen, 85 ; Blanchard v. Fearing, 4 Id. 118 ; Birkbeck v. Tucker, 2 Hall, 121 ; Ring v. Franklin, Id. 1. MORTGAGES ON SHIPS AND VESSELS. 523 may, of course, make himself liable by a bargain, 1 and he will be held to have made this bargain if he authorized the credit to be given to him personally. 2 Liens far Supplies and Repairs. "While the mortgagee is not personally bound for debts in- curred for supplies or repairs to the ship, it by no means follows that he can hold his lien as against persons claiming for service rendered in preserving the property. By Laws of 1862, c. 482, whenever a debt amounting to $50 or upwards, as to a sea going or ocean bound vessel, or amounting to $15 or upwards, as to any other vessel, shall be contracted by the master, owner, charterer, builder or consignee, of any ship or vessel, or the agent of either of them within this State, for work done or materials or other articles furnished in this State for or towards the build- ing, repairing, fitting, furnishing or equipping such ship or vessel ; for provisions and stores furnished to the vessel ; for wharfage ; for labor in loading or unloading the ship ; for ad- vances for the purchase of necessaries, or for insurance, or for towing or piloting ; " such debt shall be a lien upon such vessel, her tackle, apparel and furniture, and shall be preferred to all other liens thereon, except mariners' wages." Similar statutes exist in other States and countries, and by the law merchant, in the absence of statutory provision, if a master borrows money abroad for the necessities of the ship, and so applies the same, the lender has a lien on the ship for the amount. 3 Where a mortgagor of a vessel is permitted to have the uncontrolled use and possession of her,he has the power to confer alien on her for repairs necessary to keep her seaworthy and to preserve her as a security for the mortgagee's debt, and the lien thus created will be superior to the lien of the mort- 1 Fish v. Thomas, 5 Gray, 45. 2 2 Pars, on Cont. 280. * Wainright v. Crawford, 3 Yeatea, 131 ; 4 Dall. 225. 4 Scott t. Delahunt, 5 Lans. 372 ; Williams' v. Allsup, 10 Com. Bench, N. S. 417; 100 E. C. L. 416; In re The Young Mechanic, Ware (2d ed.) 535 ; 2 Cur- tis C. C. 404. 524 THE LAW OF MORTGAGES. JBdttomry and Respondentia Bonds. Hypothecation by bottomry is a contract in the nature of a mortgage, by which the owner of a ship, or the master as his agent, borrows money for the use of the ship, and for a specified Toyage or for a definite period, pledges the ship (or the keel or bottom of the ship, pars pro toto) as a security for its repay- ment, with maritime or extraordinary interest on account of the marine risks to be borne by the lender : it being stipulated that if the ship be lost in the course of the specified voyage, or during the limited time, by any of the perils enumerated in the contract, the lender shall also lose his money. 1 The contract of bottomry is usually in the form of a bond, termed a bottomry bond, conditioned for the repayment of the money loaned, with the interest agreed upon, if the ship safely accomplishes the specified voyage, or completes in safety the period limited by the contract. Sometimes it is in that of a bill of sale, and sometimes in a different shape. 2 The essentials of a contract of bottomry are that it shall bind the ship for the payment of the money, provided the ship performs a certain voyage and returns in safety ; and if the ship be lost, no part of the sum borrowed is to be repaid ; and because the lender takes upon himself this risk, he may charge for the use of the money maritime interest or extra interest, which will cover and com- pensate him for the risk he runs, which interest would be usu- rious but for that risk. 3 A similar contract with relation to the goods laden on board of a ship is called respondentia., .Bottomry is a loan on the ship ; respondentia is a loan upon the goods. In most other respects the contracts are nearly the same, and are governed by the same principles. 4 A bottomry bond is in some respects similar to a mortgage or a pledge. It differs from a pledge in that the lender does 1 Bouvier's Law Die. tit. Bottomry ; Abbott on Shipping, 117, 131 ; White v. Cole, 24 Wend. 116, 126. 2 6 C. Rob. Adm. 102. 3 The Northwestern Ins. Co. V. Ferward, 36 N. T. 139 ; 1 Pars, on Shipping, 134; White v. Cole, 24 Wend. 116; s. o. 26 Wend. 611. 4 1 Pars, on Shipping, 165. MORTGAGES OjST SHIPS AND VESSELS. 525 not take possession, which is of the essence of a contract of pledge, and it differs from both a pledge and a mortgage in that there is no debt apart from the security, for if the security is lost, all of the claims of the lender are lost with it. It also differs from both a pledge and a mortgage in being a valid se- curity for a loan, at a rate of interest greater than the law allows in other contracts. In its theory, a bottomry bond is a means of raising money to save the ship and send her home with her cargo, and it cre- ates a lien preferred over all others, 1 except for seamen's wages,* though there are authorities for holding that the liens of ma- terial-men for supplies or repairs indispensable to the safety of the ship would also be prior. 3 For a similar reason, if there be several successive bonds, a later bond takes precedence of an earlier, for it saves the ship for the earlier. 4 In the case of mortgages of chattels, generally, it is necessary that there shall be an immediate delivery, followed by an actual or continued possession, or the transaction is presumed to be fraudulent and void, but there is an express reservation in the statute to the effect that nothing contained in it shall be con- strued to apply to contracts of bottomry or respondentia, nor to assignments or hypothecations of vessels or goods at sea or at foreign ports. 5 A similar exception in favor of the lien by bottomry on any vessel, created during her voyage by a loan of money or materials necessary to repair or enable her to prose- cute a voyage, is contained in the United States law requiring all other transfers, mortgages or hypothecations of vessels to be recorded. 6 9 The general statute of this State requiring all chattel mort- gages to be filed does not expressly exclude bottomry bonds 1 The Duke of Bedford, 2 Hagg. Adm. 294 ; The Draco, 2 Sum. 161. 2 The Madonna D'Idra, 1 Dods. 40; Blaine v. Ship Charles Carter, 4 Craneh, 328 ; The Virgin, 8 Pet. 538. 3 The Jerusalem, 2 Gallis. 345 ; Ex parte Lewis, Id. 483. * The Betsey, 1 Dods. 289 ; The Exeter, 1 Roh. Adm. 173 ; The Trident, 1 W. Rob. 29 ; Leland T. The Medora, 2 Woodh. & M. 113 ; Furniss v. Brig Magoun, Olcott, Adm. 66. 6 2 R. S. 136, § 1, ante p. ill. ' U. S. Rey. Stat. tit. Commerce and Navigation, § 4192. 526 ' THE LAW OF MORTGAGES. from its operation. It has been held that the law has no appli- cation, even to a mortgage of a registered British vessel exe- cuted abroad, and that it relates only to mortgages executed within this State, or upon property which is here«,t the time ; 1 and it is quite clear that it could have no application to a contract of bottomry entered into in a foreign port. If the parties resided and the contract were made here, it would doubt- less be prudent to file a copy of the bond in the clerk's office, but a delivery of the written evidence of title, might render this unnecessary, and would certainly do so in the case of a con- tract of respondentia, which concerns the cargo and not the ship. 3 1 Fairbanks v. Bloomfield, 5 Duer, 434. ' First Nat. Bank of Cincinnati v. Kelly, 51 N. Y. 34. APPENDIX OF FORMS. APPENDIX OF FORMS. No. 1. COMPLAINT IX ACTION TO FORECLOSE. \Title of the action, giving the names of all of the parties thereto.'] The complaint of the above named plaintiff respectfully shows to this court : I. That the defendant, 0. D., for the purpose of securing the payment to the defendant, E. F., of the sum of dol- lars, with interest thereon, on or about the day of , 18 , executed and delivered to said E. F. a bond bearing date on that day, sealed with his seal, whereby he bound himself in the penalty of dollars, upon condition that the same should be Void if the said defendant should pay to the said E. F. the sum of dollars, on the day of , 18 , and the interest thereon, at and after the rate of seven per cent, per annum, and to be paid semi-annually. II. That it was therein expressly agreed that should any de- fault be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear for the space of thirty days, then and from thenceforth, that is to sa^after the lapse of the said thirty days, the aforesaid princi- pansum of dollars, with all arrearage of interest thereon, should, at the option of the said E. F., or his legal representa- tives become and be due and payable immediately thereafter^ although the period above limited for the payment thereof may not then have expired, anything therein before contained to the contrary notwithstanding. III. That, as collateral* security for the payment of the said indebtedness, the said defendant C. D., and M., his wife, on the same day, executed, duly acknowledged and delivered to the said E. F., a mortgage, which mortgage was duly recorded in the office of the clerk of the county of , in Liber of Mortgages, page , on the day of , 18 , whereby they granted, bargained and sold, to the said E. F., the follow- 3t 530 APPENDIX OF FORMS. ing described premises, that is to say : [Insert description of property as contained in the mortgage.] IV. That said mortgage contained the same condition as the said bond, and that, in case of default in the payment of the said money, the interest that may grow due thereon or of any part thereof, the said mortgagee was therein also empowered to sell the said mortgaged premises in due form of law, and out of the moneys arising from the sale, to pay the said sum of money and interest, with the costs and expenses of the proceedings thereupon, the surplus to be returned to the mortgagor. V. That thereafter the said defendant, E. F., by an instru- ment in writing under his hand and seal, dated the day of , 18 , and recorded in the office of the clerk of the county of , on the day of , 18 , and for a valuable Consideration therein expressed, duly assigned said bond ,. and mortgage to the plaintiff, and also therein guaranteed to the plaintiff that the same would be paid when due, with interest ; [or] which said assignment also contained a covenant in the fol- lowing words, to wit : [setting it forth.] VI. That thereafter the said C. D., and M., his wife, by their deed of conveyance under their hands and seals, dated the day of , 18 , and recorded in the office of the clerk of the county of , on the day of , 18 , duly conveyed the said mortgaged premises to the defendant L. K., subject to the said mortgage, and the said defendant L. K., in and by said deed of conveyance, and by accepting the same, assumed said mortgage, and covenanted and agreed to pay off and discharge the same, as part of the consideration in said deed of convey- ance expressed : [using language' of the recital in the convey- ance^ VII. The plaintiff further shows that in and by the terms of said mortgage, it was also expressly agreed that the said mort- gagors would keep the building erected or to be erected upon the mortgaged premises insured against loss or damage bywre, in at least the sum of dollars, and by insurers approved by the said mortgagee, and assign the policy and certificates hereof to the said mortgagee as a collateral and further security for the payment thereof. And in default of so doing it was thereby made lawful for the said mortgagee to make such insur- ance and pay the premium and premiums therefor, which pre- miums thus paid and interest thereon the mortgagors agreed to pay, and the same was declared to be deemed to be secured by said mortgage, and collectible thereby. VIII. That the said mortgagors failed to keep the buildings erected upon the said premises insured as aforesaid, and made ■default therein, and that on or about the day of , APPENDIX OF FORMS. 531 18 , the plaintiff paid the sum of dollars to the Fire Insurance company in procuring such insurance , in the sum of dollars, for the term of one year from and after said date : no part of which has been repaid to him. IX. The plaintiff further shows that the said defendants have failed to comply with the condition of the said bond and mortgage by omitting to pay the sum of dollars, being six months interest thereon, which became due and payable on the day of , 18 ; that more than thirty days have since elapsed ; that the plaintiff elects that the whole principal sum be now due and payable, and that there is now justly due to the plaintiff on the said bond and mortgage the sum of dollars, and interest thereon from the day of ,18 , together with the further sum of dollars, paid by the plaintiff in procuring insurance as aforesaid, with interest thereon from the day of 18 , the date of such pay- ment. X. The plaintiff further shows that no proceedings have been had at law or otherwise, to his knowledge or belief, for the recovery of the said sum secured by the said bond and mort- ' gpg e i or an 7 P ar * thereof : [If this is not true, state' what pro- ceedings have oeen taken.'] XI. The plaintiff further shows that he is informed and believes that the defendants, G-. H. and I. K., and L., his wife, have or claim to have some interest in or lien upon the said mort- gaged premises, which interest or lien, if any, has accrued sub- sequently to the lien of the said mortgage. Wherefore the plaintiff demands : 1. That the defendants and all persons claiming under them or either of them subsequent to the commencement of this action, may be barred and foreclosed of all right, claim, lien and equity of redemption in the said mortgaged premises. 2. That the said premises may be decreed to be sold accord- ing to law; that the moneys arising from the sale may be brought into court ; that the plaintiff may be paid the amount due on the said bond and mortgage, with interest to the time of such payment, and the costs and expenses of this action, so far as the amount of such moneys properly applicable thereto will pay the same. 3. That the defendants C. D., E. F. and I. K., may be ad- judged to pay any deficiency which may remain after applying all of said moneys so applicable thereto, and 4. That the plaintiff may have such other or further relief, or both, in the premises, as may be just and equitable. X. Y., Plaintiff's Attorney. [Add verification in the ordinary form.'] 532 APPENDIX OF FORMS. No. 2. NOTICE OP THE PENDENCY OF THE ACTION TO FORECLOSE. [Title of the action, giving the ) names of all of the parties > thereto.'] ) Notice is hereby given that an action has been commenced and is pending in this court, upon a complaint of the above- named plaintiff, against the above named defendants, for the foreclosure of a mortgage executed by the defendants C. D. and M., his 'wife, to the defendant E. F., dated the day of , 18 , and recorded in the office of the clerk of the county- of , on the day of , 18 , in Liber of Mortgages, page , at o'clock in the noon (and which said mortgage has been duly assigned by said defendant E. F. to the above named A. B., the plaintiff herein). That the mortgaged premises affected by the said foreclosure, were, at the time of the commencement of this action, and at the time of filing this notice are, situated in the town of ,., and county of , and that they are described in the said mortgage as follows, to wit : [ Insert description of the mortgaged property as contained in the mortgage.] Dated the day of , 18 . X.T., Plaintiff's Attorney. The clerk of the county of will please index against all of the defendants except the defendants C. D. and E. F. X.Y, Plaintiff's Attorney. No. 3. NOTICE OF NO PERSONAL CLAIM. [Title of the action.'] To all of the defendants except the defendants C. D., E. F. and I. K. : The object of' this action, a copy of the summons in which is herewith served upon you, is to foreclose a mortgage executed by C. D. and wife to E. F., dated , 18 , and re- corded in the office of the clerk of the county of , on the day of , 18 , in Liber of Mortgages, page . , and which mortgage has been duly assigned to the plaintiff. i APPENDIX OF FORMS. 533 The amount due and owing on said mortgage, is the sum of dollars, and interest from ,18 . The following is a description of the mortgaged premises : [Insert a brief description.'] And no personal claim is made against you. X. Y., Plaintiff 's Attorney. No. 4. NOTICE OF APPLICATION FOE JUDGMENT. [Title of the action^] Sir : Tate notice that on all of the papers and proceedings in this action, the plaintiff will apply to this court at a special term thereof, to be held at chambers, at the court house, in the city of , on the day of , 18 , at o'clock in the noon of that day, or as soon thereafter as counsel can be heard, for an order of reference to compute , the amount due to the plaintiff, and for the relief demanded in the complaint, with costs and an extra allowance, and for such other and further relief as may be just. Dated, [etc.] X. Y., Plaintiff's Attorney. To M. 1ST., Attorney for Defendant C. D. No. 5. AFFIDAVIT ON APPLICATION FOR JUDGMENT. [Title of the action.] County of , ss. : X. Y., being duly sworn, says that he is the attorney for the plaintiff. That this action was brought to foreclose a mortgage on cer- tain real estate situate in the county of , the whole amount of which said mortgage is due and payable [or, That an installment of dollars of the principal of said mort- gage, and interest thereon from the day of , 18 , is now due and payable, and that the residue thereof, being the sum of _ dollars, and interest thereon from the day of , 18 , will become due and payable on the day of , 18 .] That all of the defendants have been duly served with the summons, or have duly appeared herein by their respective 534 APPENDIX OF FORMS. attorneys, as will more fully appear by the affidavits of service and notices of appearance which are hereunto annexed. That none of the defendants are infants or absentees [or, That none of the defendants are infants except the defendant , who has appeared by his guardian ad litem., and that none of the defendants are absentees, except the defend- ant , who has duly been served with the summons by publication thereof, under an order of this court, proof of which is hereunto annexed.] That the time to answer has expired as to all of the defend- ants, and that no answer or demurrer has been received [except the usual general answer of the said infant defendant , who answers by his guardian, and who does not controvert any of the allegations of the complaint, and except also the answer of the defendant- , the issues raised by which have been duly tried and disposed of by Hon. , a . jus- tice of this court, whose findings are hereunto annexed]. That on the day of , 18 , a notice of the pendency of this action, in the form prescribed by section 132 of the Code of Procedure, and containing, as this deponent believes, correctly and truly, all the particulars required by law, to be stated in such notice, was filed in the office of the clerk of the said county of ,'that being the county where the mortgaged premises are situated, at or immediately after the time of the filing of the complaint therein ; and that, since the . filing of said notice, the complaint in this action has not been amended by making new parties to the action, or so as to affect other property not described in the original complaint, or so as to extend the claims of the plaintiff as against the mortgaged premises. Sworn, &c. [Signed,'] X. T. No. 6. ORDER OF REFERENCE, PRELIMINARY TO JUDGMENT. At a special term, etc. [Title of the action.'] On reading and filing affidavits of service and notices of ap- pearance, proving the due service of the summons on all of the defendants herein, and the affidavit of X. Y., attorney for the plaintiff, by which it appears that the whole amount secured by the mortgage described in the complaint has become due, that none of the defendants are infants or absentees, that the time to answer has expired as to all of the defendants, and that no an- swer or demurrer has been received, and that a due notice of APPENDIX OF FORMS. 535^ the pendency of this action was filed more than twenty days since, and on due notice of this motion, with due proof of the service thereof, after hearing X. T., attorney for the plaintiff, and on his motion, and M. N., counsel for the defendant C. D., in opposition thereto : It is ordered, that it be referred to , Esq., of the city of , counselor at law, to ascertain and compute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the complaint (and also to ascer- tain and compute the amount due to such of the defendants as are prior encumbrancers of the mortgaged premises). [ Where the whole amount secured by the mortgage has not become due, the reference should be .*] To ascertain and compute the amount due and yet to become due to the plaintiff on the bond and mortgage set forth in the complaint, including interest thereon to the date of his report, and also to ascertain the situa- tion of the mortgaged premises, and whether the same can be sold in parcels without prejudice to the interests of the parties ; and if he shall be of opinion that a sale of the said premises in one parcel will be most beneficial to the parties, then that he report his reasons for such opinion. [If one of the defendants is an infant, and has put in a general answer by his guardian, or if any of the defendants are absentees, the reference should be ;] To take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent on oath, as to any payments which have been made, and to ascertain and compute the amount due to the plaintiff for principal and interest on the bond and mort- gage set forth in the complaint. No. 7. SUMMONS TO ATTEND BEFORE REFEREE. [Title of the action.'] By virtue of an order made and entered in the above enti- tled action, on the day of , 18 , 1, the referee appointed herein, do hereby summon you to appear at my office, number street, in the city of , on the day of . , 18 , at o'clock in the noon, to attend a hearing of the matters in the said action, in reference before me, as such referee, pursuant to said order. And hereof fail not at your peril. Dated the day of , 18 . [Signature of Referee .] 536 APPENDIX OF FORMS. Undeeweiting. [Insert substance of the order of reference following its lan- guage, thus :] To ascertain and compute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the complaint. [Signature of Referee.'] No. 8. REPORT OP REFEREE, PRELIMINARY TO JUDGMENT. Whole amount due. No infants or absentees. [Title of the action.'] To the Supreme Court of the State of New York : In pursuance of an order of this court, made in the above entitled action on the day of , 18 , by which it was referred to the undersigned, referee, to ascertain and com- pute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the complaint [using the language of the order]. I, , the referee in the said order named, do re- port, that I have ascertained and computed the amount due to the plaintiff- upon arid by virtue of the said bond and mortgage,, and that I find and accordingly report, that there is due to the plaintiff for principal and interest on the said bond and mort- gage, at the date of this my report, the sum of dollars. Schedule A, hereunto annexed, shows a statement of the amounts due for principal and interest respectively, the period of the computation of the interest, and its rate. Dated the day of , 18 . [Signature of Heferee.] Schedule "A." Exhibit No. 1. Bond executed by to , dated the day of , 18 , to secure the sum of dollars and interest. Exhibit No. 2. Mortgage executed by and his wife, to , to secure the payment of said bond ; same date ; recorded the day of , 18 , in the office of the clerk of the county of , in Liber of Mortgages, page Exhibit No. 4. Assignment of said bond and mortgage from to ; dated the day of , 18 , and reeorded'in the office of the said clerk of the county of , in Liber of Mortgages, page APPENDIX OF FORMS. 537 Exhibit No. 5. Policy of insurance in the Fire Insurance Company. Principal sum $ Interest thereon from to , being years months and days, at seven per cent, per annum Amount paid by plaintiff for insurance Interest thereon from to this date, at seven per cent Amount due $ Dated the day of , 18 . [Signature of Referee.] No. 9. THE SAME. Whole amdunt not due. JVo infants or absentees. [Title of the action.'] To the Supreme Court of the State of New York : In pursuance of an order of this court, made in the above entitled action on .the day of , 18 , by which it was referred to the undersigned referee, to ascertain and compute the amount due, and yet to become due, to the plaintiff on the bond and mortgage set forth in the complaint, including interest thereon to the date of this report, and also to ascertain the situation of the mortgaged premises, and whether the same can be sold in parcels without prejudice to the inter- ests of the parties, I, , the referee in the said order named, do re- port, that I have ascertained and computed the amount due to the plaintiff upon and by virtue of the said bond and mortgage, and that the amount so due, with interest to the date of this re- port, is the sum of dollars. That I have also ascertained and computed the amount yet to become due to the plaintiff upon the said bond and mortgage, and that the amount which is not yet due, but which will here- after become due thereon, including interest to the date of this report, is the sum of dollars. That the whole amount secured by the said bond and mort- gage and still remaining unpaid, including interest thereon to the date of this report, is the sum of dollars. Schedule A, hereunto annexed, shows a statement of the 538 APPENDIX OF FORMS. amounts of principal due and to become due respectively, the amounts of interest thereon, the periods of computation of in- terest, and its rate. I do further report that I have ascertained the situation of the said mortgaged premises, and am of opinion that the same cannot be sold in parcels without injury to the interests of the parties. My reasons for such opinion are as follows : [Here state the reasons of the referee ; or, if the opinion of the referee is that a sale in parcels is desirable, the reasons for such opinion should he given.'] The testimony upon which I have formed said opinion is- hereunto annexed. Dated the day of , 18 . [Signature of Referee.] Schedule " A." [Set out the bond and mortgage and other papers used as exhibits on the reference, as in the preceding form, and con- tinue as follows .•] Principal sum now due $ Interest thereon from to , being years, months and days, at seven per cent, per annum Amount due $ Principal sum secured by said bond and mortgage but not yet due $ Interest thereon from to , being years, months and days, at seven per cent, per annum $ Amount to become due $ Amount due, as above $ Amount to become due, as above $ Whole amount of the plaintiff's lien at this date . $ Dated the day of , 18 . [Signature of JSeferee.'] APPENDIX OF FORMS. 539 1 No. 10. THE SAME. Wlwle amount due. Infants or absentees. [Title of the action.'] In pursuance of an order of this court, made in the above entitled action on the day of , 18 , by which it was referred to the undersigned referee, to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent on oath as to any payments which have been made, and to ascertain and compute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the complaint, I, , the referee in said order named, do report that I have taken proof of the facts and circumstances stated in the complaint, and have examined the plaintiff [or, and have exam- ined , the agent of the plaintiff] on oath as to any pay- ments which have been made, and that I am of opinion and ac- cordingly report, that Jhe facts and circumstances stated in said complaint are true, and that no payments have been made, ex- cept such as are duly credited in the said complaint. The said examination of the plaintiff [or, of , the said agent of the plaintiff], and the proofs taken by me of the facts and circumstances stated in the complaint, except such of said proofs as were documentary, are annexed to this report. And I do further report, that I have ascertained and com- puted the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the complaint, and that I find and accordingly report, that there is due to the plaintiff for principal and interest on the said bond and mortgage, at the date of this my report, the sum of dollars. Schedule A, hereunto annexed, ' shows a statement of the amounts due for principal and interest respectively, the period of the computation of the interest, and its rate. Dated the day of , 18 . [Signature of Referee.] Schedule " A." [Insert Schedule " A " as in the preceding form.] 540 APPENDIX OF FORMS. No. 11. JUDGMENT OF FORECLOSURE AND SALE. Whole amount being due. At a Special Term, etc. \Title of the action, giving the names of all of the parties thereto^ On reading and filing affidavits of service and notices of ap- pearance, proving the due service of the summons on all of the defendants in this action ; and the affidavit of X. Y., attor- ney for the plaintiff, showing that none of the defendants are infants or absentees [or, that none of the defendants are infants except the defendant \ and that none of the de- fendants are absentees except the defendant , who has duly been served with the summons by publication thereof] ; that the time to answer has expired as to all of the defendants, and that no answer or demurrer has been put in to the com • plaint in this action [except the answer of the defendant ,, who is an infant, and whose answer by his guardian does not deny any of the allegations of the complaint, and except also the answer of the defendant , the issues raised by which have been duly tried at a special term of this court, before Hon. , one of the justices thereof, and a decision therein having been rendered lor the plaintiff and duly filed], and that due notice of the pendency of this action was duly filed in the office of the clerk of the county of , on the day of ,18 , [if computation is by the court on the trial of an issue, and the court on such trial having ascertained and com- puted the amount due to the plaintiff, for principal and interest, on the bond and mortgage set forth in the complaint, to be the sum of dollars, and interest thereon from the day of , 18 , the date when said computation was made], and on reading and filing the report of , Esq., the referee to whom it was referred by an order of this court, (*) to ascertain and compute the amount due to the plaintiff, for principal and interest on the bond and mortgage set forth in the complaint [if any of the defendants are infants or absentees, continue in the language of the. order of reference : and to take proof of the facts and circumstances stated in the complaint, and to ex- amine the plaintiff or his agent, on oath, as to any payments which have been made], by which report, bearing date the day of , 1 8 , it appears [in the case of infants or ab- sentees : that the facts and circumstances stated in said com- plaint are true, and that no payments have been made except APPENDIX OF FORMS. 541 such as are duly credited in the said complaint and] that the sum of dollars was due thereon at the date of said report ; and on motion of X. T., attorney for the plaintiff, It is ordered that the said report be, and the same hereby is, in all things confirmed ; and on like motion as aforesaid, it is ad- judged that the mortgaged premises described in the complaint m this action as hereinafter set forth, or so much thereof as may be sufficient to raise the amount due to the plaintiff for principal, interest and costs, and which may be sold separately without material injury to the parties interested, be sold at public auction in the county of , by or under the direction of , Esq., of the city of , counselor at law, who is hereby appointed a referee for that purpose [or, by or under the direction of the sheriff of said county] ; that the said referee [or sheriff] give public notice of the time and place of such sale, according to law and the practice of this court ; that either or any of the parties to this action may purchase at such sale ; that the said referee [or sheriff] execute to the purchaser or pur- chasers, a deed or deeds of the premises sold ; that out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, and any lien or liens upon said premises so sold, at the time of such sale, for taxes or as- sessments, the said referee [or sheriff] pay to the plaintiff or to his attorney, the sum of dollars and cents, adjudged to the plaintiff for costs and charges in this action, with interest from the date hereof, including an extra allowance of per cent, on the amount reported due as aforesaid, which is hereby granted and allowed to the plaintiff, and that he also pay to the plaintiff or to his attorney, the amount so reported due as afore- said, together with the legal interest thereon from the date of said report, or so much thereof as the purchase money of the mortgaged premises will pay of the same, take a receipt there- for and file it with his report of sale ; that he deposit the sur- plus money, if any, with the treasurer of the said county of , [or, if the property is situated in the eity of New York, with the chamberlain of the city of New York] to' the credit of this action, to be drawn only on the order of the court, signed by the clerk and a judge thereof, within five days after he receives the same ; that he make a report of such sale and file it with the clerk of this court with all convenient speed ; that if the proceeds of such sale be insufficient to pay the amount so reported due to the plaintiff, with the interest and costs as aforesaid, the said referee [or sheriff] specify the amount of such deficiency in his report of sale, and that the defendant pay the same to the plaintiff, and that the purchaser or pur- 542 APPENDIX OF FORMS. •chasers at such sale be let into possession on production of the referee's [or sheriff's] deed. And it is further adjudged, that the defendants, and all per- sons claiming under them or any or either of them, after the filing of the aforesaid notice of pendency of this action, be for- ever barred and foreclosed of all right, title, interest and equity of redemption in the said mortgaged premises so sold, or any part thereof. The following is a description of the mortgaged premises hereinbefore mentioned : [Insert description of the property as contained in the mortgage and in the complaint.'] No. 12. THE SAME. Part only being due. Premises to be sold in one parcel. [As in preceding form, No. 11, to (*).] To ascertain and compute the amount due and yet to become due to the plaintiff on the bond and mortgage set forth in the complaint, including interest thereon to the date of his report, and also to ascertain the situation of the mortgaged premises, and whether the same can be sold without prejudice to the in- terests of the parties ; by which report, bearing date the day of , 18 , it appears that the amount due to the plaintiff, with interest to the date of said report; is the sum of dollars, and that the amount which is not yet due to the plaintiff, but which will hereafter become due to him, in- cluding interest to the date of said report, is the sum of dollars, and that the whole amount secured by the said bond and mortgage, and still remaining unpaid, including interest thereon to the date of said report, is the sum of dollars, and that the said mortgaged premises cannot be sold in parcels without injury to the interests of the parties, for the reason that [insert reason as contained in the referee's report], ISTow, on motion of X. Y., attorney for the plaintiff, It is ordered [Continue as in preceding Form No. 11, ex- cept that the direction to pay the "amount due" should be changed to a similar direction to] pay to the plaintiff or his attorney the whole amount so reported to be secured by the said bond and mortgage, and still remaining unpaid, together with legal interest, etc. [Follow Form No. 11, but before adding the description of the property, insert the following :] And it is further adjudged that, in case the amount reported as actually due to the plaintiff, with interest, and the costs of APPENDIX OF FORMS. 543 this action, shall be paid before such sale, the plaintiff shall be at liberty, at any time hereafter when any principal sum or in- terest secured by said bond and mortgage shall become due, to apply to the aforesaid referee, who is hereby continued referee for that purpose, under and in pursuance of this judgment, and obtain a report of the amount which shall then be due ; to the end that, upon the coming in and confirmation of such report, a judgment may be made for a sale of the said premises to satisfy the amount which shall then be due, with interest, and the costs of such report and sale. And it is further adjudged that, in case the said premises shall be sold under this judgment, and shall not produce suffi- cient to satisfy the amount so reported as being secured by the said bond and mortgage and still remaining unpaid, with in- terest and the costs of this action and of such sale, the plaintiff may, at any time thereafter, when any future installment of principal or interest on said bond and mortgage shall become due, apply to this court for an execution against the said de- fendant , who is personally liable for the payment of the debt secured by the said mortgage, for the amount which shall then be. due, with interest and the costs of such application. The following is a description of the mortgaged premises hereinbefore mentioned : [Insert description.'] No. 13. THE SAME. Part only being due. Premises to be sold in separate parcels. [As in preceding Form No. 12, except that the opinion of the referee to the effect that the said premises can be sold in par- cels without injury to the interests of the parties, should be stated according to the fact. The addition to Form No. 11 immediately before the description should be as follows :] And it is further adjudged that the plaintiffs be at liberty at any time hereafter, as any installment of principal or interest secured by said bond and mortgage, shall become due, to apply to the aforesaid referee, who is hereby continued referee for that purpose, under and in pursuance of this judgment, and ob- tain a report as to the amount which shall then be due, to the end that, upon the coming in and confirmation of such report, a judgment may be made for a sale of the residue of said prem- ises not sold under this judgment, to satisfy the amount which shall then be due, with interest, and the costs of such report and sale. 544 APPENDIX OF FORMS. And it is further adjudged that in case the said premises shall all be sold under this judgment, and shall not produce sufficient to satisfy the amount so reported as being secured by the said bond and mortgage and still remaining unpaid, with in- terest and the costs of this action and of such sale, the plaintiff may, at any time thereafter, when any future installment of principal or interest on said bond and mortgage shall become due, apply to this court for an execution against the said de- fendant , who is personally liable for the payment of the . debt secured by the said mortgage, for the amount which shall then be due, with interest and the costs of such application. The following is a description of the mortgaged premises hereinbefore mentioned, and specifies the order in which the said several parcels are to be separately sold, to wit.: I. The lot or parcel to be sold first is the lot or parcel bounded as follows : [Insert description.'] II. The lot or parcel to be sold next or second is the lot or parcel bounded as follows : [Insert description.] No. 14. Provision to be inserted in Judgment for a Sale in Separate Parcels in the Inverse order of Alienation. [Insert at the end of the judgment immediately before the description of the property :] And it is further adjudged that the said referee summon be- fore him all of the parties who have appeared in this action, and that he then take proof of the order and manner of alienation of the mortgaged premises, and that if it shall appear to the said referee that separate parcels of the said mortgaged premises have been conveyed or incumbered by the mortgagor or by those claiming under him subsequent to the lien of the plaintiff's mortgage, the said referee shall sell the said mortgaged prem- ises in parcels in the inverse order of alienation according to the equitable rights of the parties, who are subsequent grantees or incumbrancers, as such rights shall be made to appear to such referee. No. 15. Judgment for Deficiency, where one of the Defendants holds the position of a Surety. And it is further adjudged, that, if after applying all moneys properly applicable thereto, there shall remain a deficiency of APPENDIX OF FORMS. 545 the amount due to the plaintiff for principal, interest and costs, for which under the foregoing provisions the defendant [the principal debtor'] shall be personally liable, and if upon the issuing of an execution against the property of the said defend- ant, to the sheriff of the county in which he resides, or of the county where he last resided in this State, said execution be re- turned unsatisfied in whole or in part, the defendant [the surety], upon the return of such execution, pay so much of said deficien- cy and of the interest thereon, as shall not have been collected from the said [principal debtor], and that the plaintiff have ex- ecution therefor. And it is further adjudged, that if the said [surety] shall pay the amount thus adjudged against him personally, or if the same is collected out of his property, he shall have the benefit of this judgment against the said [principal debtor], for the purpose of enabling him to obtain remuneration to the same ex- tent, with interest, but no further ; either by a new execution against the property of the said [principal debtor], or by bring- ing an action thereon as he may think proper. Wo. 16. NOTICE OF, SALE UNDEK THE JUDGMENT. [Title of the action^] la pursuance of a judgment of foreclosure and sale, made and entered in the above entitled action, bearing date the day of X8 , 1, the undersigned, the referee in said judg- ment named [or, the sheriff of the county of ], will sell at public auction, at , in the city of , on the day of , 18 , at o'clock in the noon, by , auc- tioneer, the following described premises : [Insert description^] Dated, etc. [Signature of Referee or Sheriff.] X. Y,, Plaintiff's Attorney. No. 17. TERMS OF SALE. [Title of the action.] The premises described in the annexed advertisement of sale will be sold under the direction of , referee [or the sheriff of county], upon the following terms : Dated , the day of , 18 . 1st. Ten per cent, of the purchase money of said premises will be required to be paid to the said referee [or sheriff] at the 35 546 APPENDIX OF FORMS. time and place of sale, and for which the referee's [or sher^ iff' s] receipt will be given. 2d. The residue of said purchase money will be required to be paid to the said referee [or sheriff] at his office, No. street, in the city of , on the day of , 18 , when the said referee's [or sheriff's] deed will be ready for delivery. 3d. The referee [or sheriff] is not required to send any notice to the purchaser ; and if he neglects to call at the time and place above specified, to receive his deed, he will be charged with interest thereafter on the whole amount of his pur- chase, unless the referee [or sheriff] shall deem it proper to extend the time for the completion of said purchase. 4th. All taxes, assessments, and other incumbrances, which at the time of sale are liens or incumbrances upon said prem- ises, will be allowed by the referee [or sheriff] out of the purchase money; provided the purchaser shall, previously to the delivery of the deed, produce to the referee [or sheriff] proof of such liens and duplicate receipts for the payment thereof. 5th. The purchaser of said premises, or any portion thereof, will at the time and place of sale, sign a memorandum of his purchase, and pay, in addition to' the purchase money, the auctioneer's fee of ten dollars, for each parcel sepa- rately sold. 6th. The biddings will be kept open after the property is struck down, and in case any purchaser shall fail to com- ply with any of the above conditions of sale, the prem- ises so struck down to him will be again put up for sale nnder the direction of said referee [or sheriff] under these same terms of sale, without application to the court, un- less the plaintiff's attorney shall elect to make such appli- cation ; and such purchaser will be held liable for any deficiency there may be between the sum for which said premises shall be struck down upon the sale, and that for which they may be purchased on the resale, and also any costs or expenses occurring on such resale. 7th. [ Where there is a prior incumbrance^ The said prem- ises will be sold subject, however, to a mortgage for dollars, and interest thereon from [Signature of Referee or Sheriff.^ Memoeandttm of Sale. I have this _ day of , 18 , purchased the prem- ises described in the above annexed printed advertisement of APPENDIX OF FORMS. 54Y sale, for the sum of dollars, and hereby promise and agree to comply with the terms and conditions of sale of said prem- ises, as above mentioned and set forth. Dated the day of , 18 . M. E". [pur chaser. ~\ Keceived from M. N., the sum of dollars, being ten per cent, on the amount bid by him for property sold by me under the judgment in the above entitled action. $ Dated the day of , 18 . [Signature of Referee or Sheriff^] No. 18. REFEREE'S REPORT OF SALE. [Title of the action.'] To the court of : I, , the referee named in the' judgment in this action, dated the day of ,18 , do respectfully report, that the mortgaged lands and premises mentioned in the said judg- ment were sold at public auction under my direction and super- intendence on the day of ,18 , at , in the city of , and county of ; that on such sale M. N. became the purchaser of said premises for the sum of dol- lars, that being the highest sum bidden for the same. And I further report, that due notice of the time and place of such sale" had previously been given and published accord- ing to law and the rules and practice of this court, as appears by the affidavits and papers hereunto annexed. [If the premises were sold in separate parcels, set out the manner of the sale, the order in which the parcels were sold and the amount pro- duced hy each.] And I further report, that I have received from the said M. N. the sum of dollars, being the said purchase money, of dollars less the sum of dollars, which had been paid by the said M. N. for taxes and assessments which were liens upon said premises so sold at the time of such sale, and which moneys so paid by him for taxes and assessments, were allowed by me out of said purchase money, and that I have ex-' ecuted and delivered to him a deed of conveyance of the said lands and premises. Duplicate receipts, showing the payment of said taxes and assessments, are hereunto annexed. And I further "report, that 1 have paid out and disposed of said moneys as follows, to wit : 548 APPENDIX OF FORMS. I have retained the sum of dollars for my charges and expenses of said sale. I have paid to X. T., the attorney for the plaintiff, the sum of dollars, which was adjudged to the plaintiff for costs, and charges, and allowances in this action, for which he has given his receipt, which is hereunto annexed. 1 have paid to X. Y^ the attorney for the plaintiff, the sum of dollars, being the amount [or on account of the amount] due to the plaintiff for principal and interest, for which he has given his receipt, which is hereunto annexed. I have deposited the surplus of said money remaining after the foregoing deductions and payments, being the sum of dollars, with the treasurer of the county of [or, in the city of New York, with the chamberlain of the city of New York], to the credit of this action, for which he has given his receipt, which is hereunto annexed. [And I further report, that the proceeds of said sale were insufficient to pay the amount due to the plaintiff, and that the amount of the deficiency is the sum of dollars, with inter- est, thereon from the date of this report.] Dated the day of , 18 . [Signature of Beferee.~] 3STo. 19. ORDER CONFIRMING} REPORT OF SALE. At a special term, etc. [Title of the action.'] The report of , Esq., the referee, appointed by the judgment in this action to sell the mortgaged premises, having been duly filed in the office of the clerk of the county of , on the day of , 18 , on reading and filing due no- tice of the filing of said report, with due proof of the service thereof on all of the parties who have appeared in this action, and eight days having elapsed since said notice of filing said re- port was served, and no exceptions having been filed thereto, on motion of X. Y., attorney for the plaintiff. _ It is ordered, that said report be absolute, and that it stand as in all things confirmed. No. 20. REQUEST TO DOCKET JUDGMENT FOR DEFICIENCY. [Title of the action.'] Sir: Please docket a judgment in your office in favor of A. B., the above named plaintiff, and against the defendants APPENDIX OF FORMS. 549 C. D., E. F., and 1. K., for the sum of dollars and cents, and interest thereon from the day of , 18 , for deficiency. Judgment of foreclosure and sale filed in your office on the day of , 18 . Report of sale of , Esq., the referee named in said judgment filed in your office on the day of , 18 . Dated, etc. X. Y., Plaintiff's Attorney. To E. S., Esq., Clerk of County. No. 21. EXECUTION FOR DEFICIENCY. The People of the State of New York to the Sheriff of the County of , Greeting : Whereas, by a certain judgment made in the court, and entered in the office of the clerk of the county of , dated on the day of ,18 , in a certain action wherein A. B. is plaintiff, and C. D., E. F., I. K. and others are defend- ants, it was among other things ordered and adjudged that the mortgaged premises described in said judgment should be sold by and under the direction of , Esq., as referee [or the sheriff of the county of ], that said referee [or sheriff] should, out of the proceeds of said sale retain the costs and expenses of said sale, and pay the costs and allowances of the plaintiff and the amount reported due to the plaintiff for principal and interest, or so much thereof as the purchase money of the mortgaged premises would pay of the same ; and that if the moneys arising from said sale should be insufficient to pay the amount so reported due to the plaintiff, with the interest and costs as aforesaid, the said referee [or sheriff] should specify the amount of such deficiency in his report of sale, and that the defendants C. D., E. F. and I. K. should pay the same to the plaintiff. And whereas, the said referee has duly filed his report of sale in the office of the clerk of county, from which it appears that the money arising from said sale was insufficient to pay the amount so reported due to the plaintiff, with interest and costs as aforesaid, and that the amount of such deficiency is the sum of dollars, and interest thereon from the day of , 18 , and the report of said referee having been duly confirmed. And whereas, a" judgment for said deficiency in favor of A. B., the said plaintiff, and against the said defendants C. D., 550 APPENDIX OF FORMS. E. F. and I. K., for the sum of dollars and cents, and interest thereon from the day of , 18 , was on the day of , 18 , duly docketed in the office of the clerk of the county of , and the said sum of dollars and cents, and interest thereon from the day of , 18 , is now actually due thereon. Therefore we command you, that you satisfy the said judg- ment out of the personal property of the said judgment debtors within your county ; or, if sufficient personal property cannot he found, then out of the real property in your county belong- ing to such judgment debtors on the day when the said judg- ment was so' docketed in your county, or at any time thereafter, in whose hands soever the same may he, and return this execu- tion within sixty days after its receipt by you, to the clerk of the county of Witness, the Hon. , a justice of said court, at the court house in the city of , the day of ,18 . X. Y., Plaintiff's Attorney. No. 22. AFFIDAVIT ON APPLICATION FOK WRIT OF ASSISTANCE. [Title of the action.~[ State of New Yoek, \ County of . j M. N., being duly sworn, says that this action was brought for the foreclosure of a mortgage on certain real estate in the county of ; that judgment of foreclosure and sale was entered herein on the day of , 18 , , Esq., of the city of , counselor at law, being therein appointed the referee to sell, and said judgment containing the usual provision that the purchaser be let into possession on the production of the referee's deed ; that due notice of said sale was given by said referee, and that, on the day of , 18 , the mortgaged premises were duly sold at public auction by said referee to this deponent for the sum of dollars, that being the highest sum bidden for the same ; that this de- ponent has duly paid the said purchase money, and that the said referee has also executed, acknowledged and delivered to de- ponent a deed of conveyance of said mortgaged premises [that the report of sale of said referee was duly filed in the office of the clerk of this court on the day of , 18 , and that APPENDIX OF FORMS. 551 said report has been duly confirmed] ; x that on the day of , 18 , deponent went to the said mortgaged prem- ises and found C. £>., who is one of the defendants in this action, in possession thereof-; that he then produced and showed to said C. D. the said deed of said referee, and demanded to be let into possession by virtue thereof, but the said C. D. then refused and still refuses to surrender the said premises, or any part thereof. Sworn, etc. No. 23. ORDER FOR WRIT OF ASSISTANCE, At a special term, etc. [Title of the action^ On reading and filing the affidavit of M. IS., the purchaser at the sale of the mortgaged premises in this action, and on all of the papers and proceedings herein, including the judgment of foreclosure and sale entered herein in the office of the clerk of the county of , on the day of 18 , and the report of sale of , Esq., the referee to sell, , filed in said office on the day of , 18 , [and the order confirming said report entered herein on the day of , 18 ], and on the deed from said referee to said M. IS., which said deed bears date on the day of , 18 , and on the notice of this motion, with due proof of the service thereof on C. D., who is now in possession of the said mortgaged premises, after hearing , Esq., attorney for the said M. IS., the purchaser aforesaid, and , Esq., attorney for said 0. D., in opposition [The application may also be made ex parte. See ante, p. 372] . It is ordered, that a writ of assistance issue herein, directed to the sheriff of the county of , and that the said M. TS. be let into possession of the said mortgaged premises according to the true intent and meaning of the said judgment. 1 The clause in brackets is proper, but it is not believed to be indispens- able. Rule 73 provides that the judgment shall be " that the purchaser at such sale be let into possession of the premises on production of the deed." 552 APPENDIX OF FORMS. No. 24. WRIT OF ASSISTANCE. The People of the State of New York to the Sheriff of the County of , Greeting : 'Whereas, on the day of ,18 , by a judg- ment rendered in our court, in an action then depend- ing in said court, wherein A. P>. was plaintiff, and C. D., E. F., G. H., and I. K. and L., his wife, were defendants [give the names of all of the parties to the action], it was,. among other things, adjudged that all and singular the mortgaged premises mentioned in the complaint therein, or so much thereof as might be sufficient to raise the amount due to the said plaintiff for principal, interest and costs in said action, ^and which might be sold separately without material injury to the parties inter- ested, be sold at public auction by or under the direction of , Esq., a referee duly appointed for that purpose [or by or under the direction of the sheriff of the county of ], and also that the purchaser or purchasers at such sale be let into possession on production of the referee's [or sheriff's] deed ; And whereas, the said referee [or sheriff] has duly filed his report of said sale, and the same has been duly confirmed by an order of said court ; from which report it appears that the prem- ises hereinafter described were duly sold to M. JS". ; that said purchaser has duly paid the purchase money therefor ; and that the said referee [or sheriff] has duly executed, acknowledged and delivered to said M. !N., a deed of conveyance 6f the said premises ; And whereas, the said M. 1ST., has not been let into, and has not taken possession of the said premises according to the tenor of the said judgment, notwithstanding; that the said M. N. has duly produced and shown to the said C. D., who is in possession of said premises, the said deed of conveyance of said premises, executed by the said referee [or sheriff] in pursuance of the said judgment ; Therefore we command you that you forthwith enter upon the said premises, and eject and remove therefrom the said C. D., and any of the other parties defendant in this action who may be in possession of said premises, or any part thereof, and any person who, since the commencement of this action, has come into the possession of said premises or any part thereof, under him or them, and detains the same, or any part thereof, against the said M. IS". ; and that you put the said M. 1ST., or his assigns, in the full, peaceable and quiet possession of the said APPENDIX OF FORMS. 553 premises without delay ; and him, the said M. N., in such pos- session thereof, from time to time maintain, keep and defend, or cause to be maintained, kept and defended, according to the tenor and true intent of said judgment. The following is a description of the said premises, to wit : [Insert description]. Witness the Hon. , a justice of our said court, at the court house in the city of , on the day of , 18 . By the court. G. M., Clerk. X. Y., Attorney for Purchaser. Indorsed, 1ST. D., Justice. No. 25. AFFIDAVIT ON WHICH TO APPLY FOR A RECEIVER OF RENTS. [Title of the action.] • County of , ss : A. B., being duly sworn, say that he is the plaintiff in this action. That this action is brought to foreclose a mortgage for , dollars, and interest thereon from . , on a plot of land with a dwelling house thereon, situate and known as number street, in the city of That the said mortgage is a second mortgage, and is inferior as a lien to a mortgage for dollars upon the same prem- ises, held by , upon which there is now unpaid and ow- ing, interest from That there are unpaid taxes and assessments on said prem- ises, amounting at this date to the sum of about dollars, as nearly as can be ascertained by deponent, being as follows : tax for the year 18 , " dollars, and interest thereon, and an assessment for paving street, dollars, and interest, thereon. That the whole amount of the incumbrances on said prop- erty, including the plaintiff's claims and the said prior mortgage and the costs and expenses of this action and of a sale, will amount to the sum of about dollars. That the said mortgaged premises are an inadequate and in- sufficient security for the plaintiff's demand, and that' they are not worth more than the sum of - dollars, as deponent be- lieves. That the grounds of deponent's belief are [set out fully the reasons for fixing the value of the property at the sum named]. 554 APPENDIX OF FORMS. That the defendant is the only person who is person- ally obligated for the payment to the plaintiff of the said mort- gage debt, and that the said defendant is entirely irresponsible and insolvent. [State reason for believing this to be so, thus :] That there are judgments against said defendant which are un- satisfied of record, and that the defendants and are holders and owners of such judgments, and were made parties to this action for that reason. That said mortgaged premises are rented to the defendant [or to one ] at the price, as deponent is informed and believes, of dollars per month, and that the said de- fendant [mortgagor] is collecting and receiving such rents. Sworn, etc. ' [Signature.] No. 26. ORDER APPOINTING A RECEIVER OF RENTS. At a special term, etc. [Title of the action.] On reading and filing the affidavit of A. B. and notice of- this motion, with due proof of the service thereof, and on the complaint which is filed herein, after hearing X. T., attorney for the plaintiff, in support of the motion, and , attorney for the defendant ,*in opposition thereto. It is oedebed that M. 1ST., Esq., of the city of , coun- selor at law, be and he hereby is appointed receiver of the rents and profits of the mortgaged premises described in the com- plaint ; that before entering upon the duties of his trust the said receiver execute to the people of this State, and file with the clerk of this court, his bond, with two sufficient sureties, to be approved by a justice of this court, in the penal sum of dollars, conditioned for the faithful performance of his duties as such receiver, and that the plaintiff have $10, costs of this motion. No. 27. BOND OF RECEIVER. [Title of the action.] Know all men by these presents that we, M. ~R., of the city of , 'and O. P. and R. S., of the same place, are held and firmly bound unto the people of the State of New York, in the sum of dollars to be paid to the said people of the State of New York ; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, APPENDIX OF FORMS. 555 jointly and severally, firmly by these presents. Sealed with crar seals ; . dated the day of , 18 . Whereas, by an order of the. court, entered in the above en- titled action, on the day of , 18 , the above bounden M. 1ST. was appointed receiver of the rents and profits of the mortgaged premises described in the complaint. Now the condition of this obligation is such, that if the above bounden M. N. shall, according to the rules and practice of the court, duly file his inventory, and annually, or oftener if thereunto required, duly account for what he shall receive or be in charge as receiver in the said action, and apply what he shall receive or have in charge, as he may from time to time be di- rected by the court ; and if he shall faithfully perform his duties as such receiver, in all things according to the true intent and meaning of the aforesaid order, then this obligation to be void, otherwise to remain in full force. [Signatures and seals.'] Sealed and delivered ) in the presence of ) County of , ss : O. P. and E. S. being severally and duly sworn, each for himself says, that he is a householder [or freeholder] in this State, and is worth dollars [double the amount of the penalty of the bond] over and above his debts, and liabilities, and property exempt by law from execution. Sworn, eto. [Signatures.'] County of , ss : On the day of , 18 , before me personally came M. N., 0. P. and E'. S., to me known to be the individuals described in, and who executed the fore- going instrument and severally acknowledged to me that they executed the same. [Signature of officer.] Indorsed. Approved. [Signature of Justice.] No. 28. NOTICE OF CLAIM TO SURPLUS. [Title of the action.] Sir: Take notice that E. S., who resides at , in the city of , is entitled to the surplus moneys, or some part thereof, arising from the sale of the mortgaged' premises under the judgment of foreclosure and sale entered in this action. The nature and extent of the claim of the said E. S. is as fol- lows: [state briefly, for example,] that the said E. S. is the 556 APPENDIX OF FORMS. owner of a judgment for dollars, and interest from , obtained by him in the court of county, against the defendant C. D., on the day of ,18 , while said de- fendant was the owner of the equity of redemption of said mort- faged premises, no part of which has been paid ; and the said L S. claims that the said judgment is a first lien upon said sur- plus moneys. Dated the day of , 18 . R. S., claimant, To J. Q., clerk. (by M. N., his attorney.) No. 29. Affidavit on Applying for Reference as to Claims for Surplus. [Title of the action.'] County of , ss : M. 1ST. being duly sworn says, that he is the attorney for R. S., who is a party to this action [or who had a lien on the mortgaged premises at the time of the sale in this action] ; that the report of sale of , Esq., who was appointed a referee to sell in and by the judgment in this ac- tion, has been filed in the office of the clerk of this court ; that by such report it appears that, after satisfying the claims of the plaintiff there remains a surplus of dollars, which has been deposited with-the treasurer of county [or in the city of New Yorh, with the chamberlain of the city of New York], to the credit of this action, and that the said R. S. has filed with the clerk of this court a notice, stating that he is entitled to such surplus moneys or some part thereof, and the nature and extent of his claim. That deponent has examined all of the official searches made in the process of this cause and filed with the judgment roll, and that the following are all of the unsatisfied liens which ap- pear by such official searches, to wit : [specify liens.~] Deponent further says, that no other unsatisfied liens are known to him to exist. Sworn, etc. M. K". . No. 30. Notice of Motion for Reference as to Claim for Surplus. [Title of the action.'] Take notice, that on the annexed affidavit of M. ~S., and on all of the papers and proceedings in this action, the claimant, APPENDIX OF FORMS. 557 R. S., will apply to this court, at a special term thereof, to be held at , on the day of , 18 , at o'clock in the noon of that day, or as soon thereafter as counsel can be heard, for an order of reference, to ascertain and report the amount due to said R. S., or to any other person, which is a lien upon the surplus moneys in this action, and to ascertain the pri- orities of the several liens thereon, and for such other or further relief as may be just. Dated, etc. M. K, Attorney for Claimant R. S. [ Address to every party who appeared in the cause, or who shall have filed a notice of claim, with the cleric " previous to the entry of the order of reference." If such a notice is filed after the service of notice of application for the reference on the other parties, an adjournment of the motion may be neces- sary.'] No. 31. ORDEK OF REFERENCE AS TO CLAIMS FOR SURPLUS. At a special term, etc. [Title of the action.'] On reading and filing the affidavit of M. 'N., and notice of this motion, with due proof of the service thereof, after hearing M. IS"., attorney for the claimant K. S., and on his motion, and , counsel for , in opposition thereto [or no one appearing in opposition thereto], It is ordered, that it be referred to W. S., Esq., of , to ascertain and report the amount due to R. S., or to any other erson, which is a lien upon the surplus moneys in this action ; to the end that on the coming in and confirmation of the report on such reference, such further order may be made for the dis- tribution of such surplus moneys, and as may be just. [If un- satisfied liens appear from the searches on file, or are hnown to exist, the court should designate the manner of service of notice upon the holders of such liens; for example:] And it is further ordered, that in addition to the other no- tices required by the rules of this court, 1 notice of the proceed- 1 Rule 11 provides that every party who appeared in the cause, or who shall have filed a notice of claim with the clerk, previous to the entry of the order of reference, shall be entitled to service of the application for the reference, and to attend on such reference. But if such claimant shall not have appeared, or made his claim by an attorney of the court, the notice may be served by putting the same into the post office, directed to the claimant at his place of residence, as stated in the notice of his claim. 558 APPENDIX OF FORMS. ings on such reference be given to and either by service on them personally, or by leaving the same at their respective places of residence, not less than days prior to the hearing. No. 32. SUMMONS TO ATTEND REFERENCE AS TO SURPLUS. [As in No. 7, with the following ;] 1 Underwriting. To ascertain and report the amount due to R. S., or to any other person, which is a lien upon the surplus moneys in this action, and to ascertain the priorities of the several liens thereon. [Signature of Referee.'] [Address to every party who appeared in the cause, or who shall have filed a notice of claim with the clerk previous to the entry of the order of reference, and also to all persons who are lenown to have unsatisfied liens.'] No. 33. Certificate of Clerk as to who hare Appeared and Filed Claims. [Title of the action.'] I certify that the following persons have appeared in the above-entitled action by their respective attorneys : A. B. by X. Y., his attorney ; C. D. by J. F., his attorney ; and R. S. by M. 1ST., his attorney. I further certify that there are no notices of claim to surplus money on file, in the above-entitled action, except the claim of E. S., by M. N., his attorney. Dated at , this day of , 18 . W. W., Cleric. No. 34. REFEREE'S REPORT. [Title of the action^] , To the court of I, , the referee appointed by an order of this court, entered in the above-entitled action, on the day of , 18 , to ascertain and report the amount due to. APPENDIX OF FORMS. 559 K. S., or to any other person, which is a lien upon the surplus moneys in this action, and to ascertain the priorities of the sev- eral liens thereon, do respectfully report : That I caused all parties who have appeared in this action, and all persons who have filed notices of claim upon said sur- plus moneys, and all persons who were known to have liens thereon, to be summoned to appear before me ; as appears by the certificate of the clerk, which is hereunto annexed, showing who have appeared in the action and filed notices of claim, and the summons and proof of service thereof, which is also here- unto annexed, and that on the hearing I was attended by M. N., attorney for the claimant R. S., and by , attorney for the claimant . The testimony of the witnesses upon such hearing was reduced to writing, and was signed by them ; and such testimony and all evidence, excepting such of it as was documentary, is annexed to this report. From such testimony and evidence I make the following Findings of Fact. I. That the amount of the surplus moneys in this action is dollars, as appears by the certificate of the treasurer of county [or the chamberlain of the city of New York], which is hereunto annexed. II. [Set forth the further findings of fact of the referee as in, the trial of issues in an action."] And, from the foregoing findings of fact, I further find the following Conclusions of Law. I. That there is due and owing to the said claimant E. S., the sum of dollars, and interest thereon from , amounting at the date of this report to the sum of dol- lars, upon and by virtue of the said judgment recovered by him against the said C. D., as aforesaid, and that the said amount is the first lien on the said surplus moneys in this action. II. [Continue in the order in which the liens are found until the whole fund is disposed of] Dated, etc. W. S., Referee. Fees, $ 560 APPENDIX OF FOEM9. 3STo. 35. Notice of motion to confirm Report and distribute the Surplus. [Title of the action.'] Sirs : Take notice that the report of , Esq., the referee appointed herein to ascertain and report the amount due to K. S., or to any other person, which amount is a lien on the surplus moneys in this action, and to ascertain the priorities of the sev- eral liens thereon, was this day duly filed in the office of the clerk of the county of Take notice also that upon said referee's report, and upon all of the testimony and papers annexed thereto, the claimant E. S. will apply to this court at a special term thereof, to be held at , on the day of , 18 , at o'clock in the noon, or as soon thereafter as counsel can be heard, [more than eight days notice should he given, so as to allow full eight days for the filing of exceptions, under Rule 39,] for an order confirming said report and directing the treasurer of county [or the chamberlain of the city of New York] to pay to tho . claimant E. S., or his attorney, the sum of dollars, and interest thereon from the day of , 18 , the date of said report, out of said surplus moneys, together with an allow- ance by way of costs in these proceedings, and for such other or further relief as may be just. Dated, etc. [Signature of attorney.'] No. 36. Order confirming Report of Referee and directing distribution of Surplus Moneys. At a special term, etc. [Title of the action.] On the report of , Esq., the referee appointed herein to ascertain and report the amount due to E. S., or to any other person, which amount is a lien on the surplus moneys in this action, and to ascertain the priorities of the several liens there- on, which report was tiled in the office of the clerk of this court, on the day of , 18 , and on all of the testimony and papers annexed to said report and filed therewith ; and on reading and filing the notice of filing said report and of this motion, with due proof of the service thereof, on all parties en- titled to such notiee, and on the exceptions of the claimants and , which have been filed herein ; after hearing M. 1ST., at- torney for the claimant E. S., in support of the motion, and APPENDIX OF FORMS. 561 , attorney for the claimant , and , attorney for the claimant , in opposition thereto, It is ordered, that the said exceptions be overruled, and that the said report of the said referee be and the same hereby is in all things confirmed. ' It is further ordered, that the treasurer of county [or the chamberlain of the city of New York] pay out and distribute the moneys in his hands to the credit of this action, after de- ducting therefrom the fees and commissions allowed to him by law, as follows and in the following order of priority : Fiest, That he pay to , Esq., referee in these proceed- ings, the sum of dollars, for his fees as such referee. Second, and next, That he pay to X. Y., the attorney for the claimant K. S., the sum of dollars, as an allowance by way of costs in these proceedings. Third, and next, That he pay to the claimant K. S., or to his attorney, X. Y., the sum of dollars, and interest thereon from the day of , 18 , the date of said referee's report. Fourth, and next, That he pay to , the attorney for the claimant , the sum of dollars, as an allowance by way of costs in these proceedings. Fifth, and next, That he pay to the claimant , or to his attorney , the balance of said moneys. No. 37. COMPLAINT IN ACTION FOR STRICT FORECLOSURE. 1 [Commence as in action to foreclose by a sale, following Form JVo. 1 to and including paragraph V, so far as that form may apply. .] , YI. That thereafter the said [the person who owned the mortgage which has been defectively foreclosed} commenced an action in the . court, county of , against 0. D., E. F., G. H., and I. K. and L. his wife, for the foreclosure of the said mortgage, and for the sale of the said mortgaged premises to satisfy and discharge said indebtedness, and such proceedings were had in said action, that on the day of , 18 , it was duly ordered and adjudged by the said court, that the said mortgaged premises, or so much thereof as might be necessary 1 This form is prepared with special reference to a case whore, by reason of a defect in a previous foreclosure, a lien upon the property has not been extin- guished, and the strict foreclosure is made for the purpose of cutting it off. The general principles which control the rights of the parties, and the relief to which they are entitled are discussed ante, at pages 389 el seq. 562 APPENDIX OF FORMS. to raise the amount then due to the said , for principal, interest and costs; and which might be sold separately without material injury to the parties interested, be sold at public auc- tion, in the county of , by or under the direction of , Esq., of , counselor at law, who was duly appointed referee. That subsequently to the entry of said judgment, and in pursuance thereof, the said referee duly sold said mortgaged premises at public auction to this- plaintiff, and this plaintiff duly paid to him the purchase money therefor, and received from him a deed of conveyance thereof, all of which will more fully appear by said deed of conveyance, which was, on the day of , 18 . duly recorded in the office of the clerk of the county of , in Liber of Conveyances, page ; by the report of sale of said referee, which was duly filed in the office of said clerk, on the day of ' , 18 , and by the order of said court confirming said report of sale, which was duly entered in said action on the day of ,1s. 1 VII. That under said foreclosure and sale, and the said deed of conveyance of said referee, executed in pursuance of said judgment, the plaintiff entered into possession of said mortgaged premises, and the receipt of the rents and profits thereof, and that he has since continued and still is,in possession. That he then believed that he had acquired, under said foreclosure pro- ceedings, a perfect title to the said mortgaged premises, free from all liens and incumbrances, but that he has since been in- formed, and he believes, that the defendant has, or claims to have, an interest in or lien upon the said premises by virtue of a certain mortgage executed [describe if], the lien of" which mortgage was and is inferior, and subsequent to the lien of the mortgage under which said foreclosure and sale was had. VIII. That this plaintiff is advised that he has acquired by said foreclosure proceedings, the title to the said mortgage un- der which said sale was had [and also the right which I. K. and L. his wife, who were defendants in said action, had to re- deem from the mortgage held or claimed by the defendant, the said I. K. being, at the time of the commencement of said fore- 1 If the defective foreclosure has been by advertisement and sale under the statute, a simple allegation may be made that the mortgage was assigned to the plain iff by the mortgagee, and it will not be necessary to set out the whole pro- ceeding. The affidavits showing the defective foreclosure will then be admissible on the trial as evidence of the assignment. Robinson v. Ryan, 25 N; Y. 820. H would doubtless also be permissible to omit to set out the proceedings when the defective foreclosure has been by action, but in all cases a fuller form of statement is preferable. If the title of the plaintiff to the mortgage is shown by allen-ino- an assignment to him, a portion of paragraph VII would be inapplicable, and it should be averred simply that the plaintiff, on a certain day, entered into the pos- session of said premises, Ac. APPENDIX OF FORMS, 563 closure, the owner in fee of the title and equity of redemption of said premises]. 1 That the amount which was due and owing to the plaintiff in said action on the said mortgage, at the time of the entry of said judgment of foreclosure and sale, exclusive of the costs or expenses of said action or of said sale, was the sum of dollars, and interest . thereon from the day of , 18 , no part of which has been paid, except as it was paid by the proceeds of said sale, under which this plaintiff claims. IX. That the plaintiff has laid out and expended large sums for permanent improvements and repairs upon said premises, to wit : [state the nature of the improvements, their cost and their value]. And that the defendant has also paid large sums for taxes and assessments on said premises, to wit : [state the amounts paid, the date of payment, and the nature of the tax or as- sessment^] X. That the rents and profits received by this plaintiff from said premises, have not been so great in amount as the annual interest on said mortgage, under which said foreclosure was had, and have not amounted to more than the sum of about dollars. That the plaintiff claims that the amounts paid by him for taxes and assessments, and repairs, and the value of the per- manent improvements made by him as aforesaid, should be al- lowed to him and added to the amount of said mortgage and interest thereon, and that there is now due and owing to him thereon, about the sum of dollars. XI. That the plaintiff has applied to the said defendant , and requested him to pay the plaintiff the said sum so due on the said mortgage held by the plaintiff, or come to an account- ing with him thereon, and after the proper charges and credits, pay to the said plaintiff what should appear to be due him on the said mortgage ; or, in default thereof, to release his right and equity of redemption in the said mortgaged premises. But the said defendant has hitherto refused, and still refuses so to do, or to comply with any part of said plaintiff's request. 1 The purchaser at a foreclosure sale acquires the rights of the plaintiff in the land, and also the rights of all of the defendants. As against a stranger to the action holding a junior lien, he may either enforce the lien of the mortgage fore- closed, or he may redeem. See ante, pages 365, 391. It will not often be diffi- cult to determine what to do, but where the value of the property or the amount or validity of the junior lien is doubtful, it will be permissible for the purchaser under the defective foreclosure, to insist upon all of his rights. The action may fien be to cancel the junior lien if it be void, or to have the. amount due upon it ascertained if it be valid, and to foreclose it either by a sale or by a strict fore- closure. If a strict foreclosure is desired, see ante, pages 391, 392. The clause in brackets would be proper if the plaintiff desired to ask for any relief other than for foreclosure. 564 APPENDIX OF FORMS. "Wherefore the plaintiff demands judgment : 1. That an account may be taken of what is due and owing to the plaintiff for principal and interest on said mortgage ; and that an account may also be taken of the rents and profits of the said mortgaged premises which have been received by the plaintiff, and also of the expenditures of the plaintiff for permanent im- provements and repairs, and for taxes and assessments. 2. That said defendant pay to the plaintiff what may be due him on taking the said account, together with the costs of this action, by a short day to be appointed by the court for that pur- pose ; or, in default thereof, that the said defendant and all per- sons claiming under him, be debarred and foreclosed of and from all right, title and equity of redemption in and to the said mortgaged premises, and every part thereof. 3. That the plaintiff have such other or further relief, or both, in the premises, as may be just and equitable. X. Y., Plaintiff's Attorney. [Add verification in the usual form,.'] No. 38. JUDGMENT FOE STRICT FORECLOSURE. [Commence by reciting the proceedings in the action, which will be similar to Form No. 11. In all cases an affidavit under Rule 72, of the filing of a notice of the pendency of the action must be furnished upon applying for judgment, and should be recited. The following will be the essential parts of the judgment/] v Therefore it is adjudged, that upon the defendant's paying unto the said plaintiff the amount which is so found and re- ported due to him as aforesaid, with interest from the date of said report, 1 together with the further sum of , dollars, and interest from this date, which is hereby adjudged to the plaintiff for costs and charges of this action, within' [six] months after the entry of this judgment, and service of notice thereof upon the attorney for the defendant, said payment to be made at [the office of , Esq., attorney for the plaintiff, No. street, in the city of , between the hours of ten a. m. and 3 p. m., of any business day, on or before the expiration of said six months, and which said day shall have been named by the said defendant in a notice in writing to be served by him on said attorney for the plaintiff, not less than 1 This will be the amount due to the plaintiff after all proper allowances have been made to him, and he has accounted for rents and profits. APPENDIX OF FORMS.- 565 ten days prior to such day], the said plaintiff do then convey the said mortgaged premises to the said defendant , by a suitable and proper instrument of conveyance, to be approved by the court in case the parties cannot agree upon the form thereof, free and clear of all incumbrances, done or suffered by him, or by any person claiming by, from, or under him [and with the usual covenants against" his and their acts] ; and that he deliver up all deeds and writings in his custody or power relating thereto, upon oath, to the said , , or to whom- soever he may appoint to receive the same ; and further, that the said plaintiff execute and acknowledge a certificate to cancel and discharge said mortgage of record. But in default of the said defendant's paying unto the plaintiff such principal, inter- est and costs as aforesaid, by the time limited for that purpose, then it is adjudged that the said defendant , and all persons claiming under him, after the filing of the aforesaid notice of the pendency of this action, do stand and be forever barred and foreclosed of and from all right, title, interest and equity of redemption in the said mortgaged premises, and every part thereof. The following is a description of the, said mortgaged prem- ises hereinbefore mentioned : No. 39. ORDER EXTENDING TIME FOR REDEMPTION. At a special term, etc. [Title of the action.'] On reading and filing the affidavit of the defendant , and notice of this motion, and on all of the papers and pro- ceedings herein, after hearing M. N,, attorney for said defend- ant, and on his motion, and X. T., attorney for the plaintiff, in opposition thereto, It is ordered, that the time granted to the said defendant , in and by the judgment which was entered in this action on the day of , 18 , and within which time he was required to redeem the mortgaged premises by pay- ing the amount due to the plaintiff for principal, interest and costs, or stand foreclosed, be and the same hereby is extended and enlarged for [one] month upon condition that the said de- fendant shall, within ten days after the entry of this order, pay to the plaintiff ten dollars, costs of this motion. 566 APPENDIX OF FORMS. No. 40. FINAL ORDER IN ACTION FOR STRICT FORECLOSURE. At a special term, etc. [Title of the action.'] Upon the judgment entered in this action on the day of , 18 , and on reading and filing notice of the entry of said judgment, with due proof of the service thereof on the defendant, and the affidavit of the plaintiff showing That the defendant has not paid the amount due to the plaintiff for prin- cipal, interest and costs, or any part thereof, though more than six months have expired since the said service of notice of the entry of said judgment as aforesaid, and on due notice of this motion, with due proof of the service thereof ; after hearing X. Y., attorney for the plaintiff, in support of the motion, and M. N., counsel for the defendant, in opposition thereto, It is ordered, that the said defendant , and all persons claiming under him, after the filing of the notice of the pendency of this action, do stand and be forever barred and foreclosed of and from all right, title, interest and equity of redemption in the mortgaged premises described in the said judgment, and every part thereof. "No. 41. Complaint in Action to Redeem. Grantee of Mortgagor against Mort- gagee in Possession. [Title of the action.'] The plaintiff, complaining against the defendant, alleges: That heretofore E. F., being then .the owner in fee of the premises hereinafter described, and M., his wife, executed to the above-named defendant, C. D., a mortgage bearing date on the day of , 18 , to secure the payment of the bond of said E. F., therein set forth and described, conditioned for the payment of the sum of [set out condition]. That said mortgage was, on the ' day of , 18 , recorded in the office of the clerk of the county of , in Liber of Mortgages, page , and that the mortgaged premises are therein described as follows : [Insert description.^* ' That thereafter, and on or about the day of . , 18 , the said defendant entered into the possession of the said mortgaged premises, and -into the receipt . of the rents and profits thereof, and has ever since continued in such possession and receipt. APPENDIX OF FORMS. 587 That heretofore the said E. F. and M., his wife, by their deed of conveyance, executed under their hands and seals, bear- ing date on the day of , 1 8 , and recorded in said clerk's office, on the day of , 18 , in Liber of Conveyances, page , and for a valuable consid- eration, therein expressed, duly conveyed the said mortgaged premises to the plaintiff, subject to the said mortgage. The plaintiff further alleges upon information and belief, that the said mortgage has been either wholly or in great part satisfied and paid by the rents and profits of said mortgaged premises received by said defendant, and otherwise. That the plaintiff has desired and requested the defendant to come to an accounting with him as to the amount unpaid and owing upon said mortgage, but the said defendant refused, and still refuses so to do. Wherefore the plaintiff demands that an account may be taken of the amount due to the defendant for principal and in- terest on said mortgage, and that the plaintiff may be at liberty to redeem the said mortgaged premises upon payment of what, if anything, shall be found to be due ; that the defendant upon payment thereof acknowledge satisfaction of said mortgage and discharge the same of record, and that the plaintiff may have such other and further relief, or both, in the premises as may be just. X. Y., Plaintiffs Attorney. [Verification in the usual form.'] No. 42. Complaint in Action to .Redeem and to Compel an Assignment. Junior Incumbrancer against Mortgagee. \_As in Form No. to the *.] That heretofore, on the day of , 18 , the plaintiff duly recovered ajudgment against the said E. F., in an action in the Supreme Court, in and for the county of , for the sum of dollars damages and costs ; that, said judgment was on the day of , 18 , duly docketed in the office of the clerk of the said county of , and then became and was a lien on the said mortgaged premises subject to said mortgage, and that no part of said judgment has been paid. That the said mortgage held by the said defendant C. D. be- came due and payable on the day of , 18 ; that thereafter this plaintiff offered and tendered to the said defend- ant the full amount due thereon for principal and interest, and 568 APPENDIX OF FORMS. requested an assignment thereof, but the said defendant refused to execute such assignment to the plaintiff. That the said E. F., who is now the owner of the said mort- gaged promises, has neglected and refused to pay the principal or interest secured by said mortgage, and that he remains in possession of the said mortgaged premises and of the rents and profits thereof ; that the taxes on said mortgaged premises for the year 18 are unpaid, amounting to the sum of dol- lars ; that the said E. F. is insolvent ; that the accumulations of interest on said mortgage and on said taxes seriously impairs the security and value of the plaintiff's aforesaid lien; and that the defendant and the said E. F. have combined and confederated together to allow the amount of said mortgage to reach the en- tire value of the property, and then to foreclose the same, with intent to deprive the plaintiff of any advantage of his said judg- ment lien. 1 Wherefore the plaintiff demands that £tn account may be taken of the amount due to the defendant for principal and in- terest on said mortgage, and that the plaintiff may be at libei-ty to redeem from the said mortgage upon payment of what shall be found to be due ; that the defendant upon payment thereof, execute, acknowledge and deliver to the plaintiff an assignment of the said bond and mortgage, and that he also deliver to the plaintiff all instruments in writing and papers in relation thereto, and that the plaintiff have such other and further relief, or both, in the premises as may be just. X. Y., Plaintiff^s Attorney. [ Verification in the usual form.'] No. 43. Order of Reference to take Account of Amount due to Mortgagee in Possession. [Recite proceedings, and then add ;] It is ordered, that it be referred to M. !N\, Esq., of the city of , counselor at law, to take an account of what is due to the defendant for principal and interest on the bond and mort- gage set forth in the complaint. And the said referee is also to take an account of the rents and profits of the said mortgaged premises which have come to the hands of the said defendant, 1 It ia necessary that it should be made to appear that an assignment is for Some special reason essential to the protection of the equitable rights of the plaintiff. See ante. p. 224. APPENDIX OF FORMS. 569 or of any other person or persons by his order or for his use, or which he, without his wilful default, might have received. And what shall be coming on the said account of rents and profits, is to be deducted out of what shall be found due to the said de- fendant for principal, interest and costs. And the said referee is also to allow the said defendant all sums paid out by him for taxes, or for permanent improvements, or for repairs, or for other purposes whenever, upon principles of equity, such pay- ments ought to be allowed. And for the better taking of the said account, the said parties are to produce before and leave with the said referee, all deeds, books, papers and writings in their custody or power relating thereto, and are to be examined on oath as the said referee may direct'. No. 44. JUDGMENT FOB REDEMPTION. ORDINARY FORM. [Recite the proceedings in the action, and then add :] Therefore it is adjudged that the plaintiff may redeem the said mortgaged premises from the mortgage held by the defend- ant, and which is mentioned and described in the complaint in this action, upon paying to the said defendant the said sum of dollars so found and reported due to the defendant, with interest thereon from the date of said report, and the further sum of dollars adjudged to the defendant for his costs and charges in this action, with interest from the date hereof, within [six] months after the date of the entry of this judgment and service of notice thereof ; and that, upon such payment being made, the said defendant do surrender the said mortgaged prem- ises unto the said plaintiff, or unto such person or persons as he shall direct, free and clear of all incumbrances done by him, or any person claiming by, from or under him, and deliver unto the said plaintiff, on oath, all deeds' and writings in his custody or power, relating to the said mortgaged premises. And further, that the said defendant execute and acknowledge a certificate to cancel and discharge said mortgage of record. But in default of the said plaintiff making the said payment of principal, inter- est and costs as aforesaid, it is ordered that the complaint of the said plaintiff do, from thenceforth, stand dismissed out of this court, with costs to be taxed. 570 APPENDIX OF FORMS. No. 45. AFFIDAVIT OF MORTGAGEE, OF NON-PAYMENT OF MONEY. [Title of the action.'] County of , ss : C. D., the above named defendant, being duly sworn says, that he has not, nor has any person or persons in his behalf, at any time heretofore, received or been paid the amount of dollars and interest thereon from the day of , 18 , or any part thereof, which by the judgment made and entered in this action, on the day of , 18 , was ordered and appointed to be paid to him, this deponent ; but that the full amount which was found and ad- judged by said judgment to be due and owing to this deponent on the bond and mortgage mentioned and described in the com- plaint, is still owing and unpaid thereon. No. 46. FINAL ORDER DISMISSING COMPLAINT. At a special term, etc. ' [Title of the action.'] Upon the judgment entered in. this action on the day of , 18 , and on reading and filing notice of the entry of said judgment, with due proof of the service thereof on the plaintiff, and the affidavit of the defendant showing that the plaintiff has not paid the amount due to the defendant for prin- cipal, interest and costs, or any part thereof, though more than six months have expired since the said service of notice of the entry of said judgment as aforesaid, and on due notice of this motion, with due proof of the service thereof, after hearing X.' Y., attorney for the defendant, in support of the motion, and J. K., counsel for the plaintiff, in opposition thereto : It is ordered, that the complaint of the said plaintiff do, from henceforth, stand dismissed out of this court, with dollars costs to be taxed by the clerk of this court, including $10 costs of this motion. No. 47. NOTICE OF SALE ON FORECLOSURE BY ADVERTISEMENT. Whereas, default has been made in the payment of the money secured by a mortgage dated the day of , 18 , executed by A. B. and M., his wife, of , to C. D., of the same place, which mortgage was recorded in the office of APPENDIX OF FORMS. 571 the clerk of the county of , in Liber of Mortgages, page , on the day of , 18 ■ , at o'clock in the noon of that day ; and which said mortgage was 'by the said C. D. assigned to E. F., who is now the owner and holder thereof; And whereas the amount claimed to be due upon said mort- gage at the time of the first publication of this notice is the sum of dollars and cents, to wit : the sum of dollars principal, and the sum of dollars and cents the interest thereon from the day of , 18 , which said sum of dollars and cents is the whole amount claimed to be unpaid on said mortgage : Now, therefore, notice is hereby given that, by virtue of the power of sale contained in said mortgage and duly recorded, as aforesaid, and in pursuance of the statute in such case made and provided, the said mortgage will be foreclosed by a sale of the premises therein described at public auction, at , in the city of on the day of , 18 , at o'clock in the noon on that day. The said premises are described in said mortgage as follows : [Insert description. ] Dated, etc. . E. F., Assignee of Mortgage. X.Y., . Attorney for Assignee. No. 48. THE SAME. A SHORT FORM. Mortgage Sale. — Mortgagors A. B. and M. his wife ; mortgagee C. D. ; assignee E. F. ; second assignee and present owner and holder G-. H-. Mortgage dated , 18 , and recorded in the office of the clerk of county, 18 , in Book ~No. of Mortgages, page . The amount claimed to be due upon said mortgage, at the date of the first publication of this notice in the sum oi $ Default having been made in the payment of the moneys secured by said mortgage, and no suit or proceeding at law or otherwise having been instituted to recover said mortgage debt or any part thereof : now, therefore, notice is hereby given, according to the statute in such case made and provided, that by virtue of the power of sale contained in said mortgage, and duly recorded therewith as aforesaid, the said mortgage will be foreclosed by a sale of the premises therein described, by the 572 APPENDIX OF FORMS. subscriber, the assignee aforesaid, at public auction, on the day of , 18 , at in the noon of that day, at , in the village of , in said county of Said premises are described in said mortgage as follows: [Insert description.'] Dated, etc. G. H., Assignee. X. Y., Attorney. No. 49. Affidavit of Affixing Copy of Notice in Book kept by the County Clerk. State of New York, County of \ x , being duly sworn, says, that he is the clerk of the said county of ; that more than twelve weeks prior to the time therein specified for the sale, to wit, on the day of , 18 , he received a printed copy of the annexed notice of sale, and that immediately, to wit, on said day, he affixed the same in a book prepared and kept by him for that purpose, and also entered in said book at the bottom of such notice the time of receiving and affixing the same, duly sub- scribed by him, the said clerk, and also indexed such notice in the name of the mortgagor. Sworn, etc. No. 50. The same. Made by any other person than the County Clerk. State of New Yoek, County of . f , being duly, sworn, says, that he resides at [and is one of the clerks employed by the clerk of the county of in the office of said clerk] ; that more than twelve weeks prior to the time therein specified for the sale, to wit, on the day of , 18 , he saw a printed copy of the annexed notice of sale affixed in a book prepared and kept by the clerk of said county of for that purpose; that there was then also entered in said book, at the bottom of such notice, the time of receiving and affixing the same, which was therein stated to be the day of , 18 , duly sub- subscribed by said clerk, and that said notice was also indexed in the name of the mortgagor. Sworn, etc. APPENDIX OF FORMS. 5Y3 No. 51. Affidavit of affixing the Notice of Sale on the onter door of the Court House. State op New Yoek, ) County of ) , being duly sworn, says, that lie resides at , and that, more than twelve weeks prior to the time therein specified for the sale, to wit, on the day of , 1 8 , he affixed a printed copy of the annexed printed notice of sale, on the out- ward door of the court house in the city [or village] of , that being the building which is nearest to the said mortgaged premises, and in which the county courts are directed to be held in the county of , where the said premises are' situated. He further says, that said notice was affixed and posted on the said outer door of said court house, in a conspicuous place and in a substantial manner. Sworn, [etc.] No. 52. Affidavit of the Publication of the Notice of Sale. State of New Yoek, . ' <■ ss County of j , being duly sworn, says, that he resides at , and that he is, and at the several times hereinafter mentioned he was, the printer [or the foreman of the printer, or the principal clerk of the printer] of the [Weekly Gazette}, a newspaper printed and published at , in the county of ; that the annexed notice of sale was published in the said newspaper for twelve weeks successively, once in each week, prior to the time therein specified for the sale, commencing on the day of , 18 , and ending on the day of , 18 , both days inclusive. [And, if there have oeen adjournments, add :] And he further says, that the notice of postponement annexed to and underneath said notice of sale, was also published in said newspaper on the day of , 18 ', and on the day of , 18 , in the form shown in said annexed printed copy thereof. Sworn, etc. 5Y4 APPENDIX OF FORMS. No. 53. AFFIDAVIT OF SERVING NOTICE OF SALE. State of New Toek, ) County of j , being duly sworn, says, that he resides at , and that he is of the age of years ; That on the day of , 18 , at , in the city of , he served a copy of the annexed notice of sale on , by delivering the same to and leaving it with him per- sonally ; that on the same day [or, on the day of , 18- ,] at , he made a like service upon That on the day of , 18 , he served a copy of said annexed notice of sale on , by leaving the same, which was legibly addressed to him, at his dwelling house at , in the city of , in charge of a person of full age, who received the same for him ; that on the same day [or on the day of ,18 ,] he made a like service upon , by leaving a copy of the said notice addressed to him, at his dwelling house at ." , in the city of , in charge of a person of full age, who received the same for him. That on the day of ,18 , he served a copy of the said annexed notice upon each of the following named persons, by depositing the same in the' post office at the city of , folded, inclosed in sealed envelopes, and directed to each of the said persons at their several respective places of residence as follows : to , at ; to , at > , and to , at . That the postage on each of said notices was pre- paid, and that the said persons were known to deponent to re- side at the several places to which the notices to them were re- spectively directed. Sworn, etc. No. 54. AFFIDAVIT OF THE FACT OF THE SALE. State of .New Yoek, County of , being duly sworn, says, that he resides at , and that at , in the city of , on the day of , 18 , at o'clock in the noon of that day, he officiated as auctioneer at the sale of the mortgaged premises described in the notice of sale, a printed copy of which is hereunto annexed, pursuant to such notice and by virtue of the power of sale con- tained in the mortgage which is therein mentioned ; 'that said sale took place at said time and place, and that the whole of said APPENDIX OF FORMS. 5Y5 premises were then and there sold in one parcel to , of , for the sum of dollars, he being the highest bid- der therefor, and that being the highest sum bidden for the same. Deponent further says, that said Sale was made at public auction and in the day time, and was, as deponent believes, hon- estly and fairly conducted. Sworn, etc. No. 55. Affidavit in Summary Proceeding by Purchaser under the Foreclosure by Advertisement, to obtain Possession. 1 State of ISTew Yoke, ) County of .]' , being duly sworn, says that heretofore A. B., being the owner of the premises hereinafter described, and being in- debted to 0. D. in the sum of dollars, upon his bond for that sum dated on the day of , 18 , and payable in one year after that date, with interest thereon payable semi- annually, the said A. B. and M. his wife executed, acknowledged and delivered to said 0. D., a mortgage to secure the payment of said bond bearing even date therewith, and recorded in the office of the clerk of the county of , in Liber of Mortgages, page , on. the day of , 18 , whereby they granted and conveyed unto the said C. D. the following described prem- ises, to wit : {Insert description^ That said mortgage con- tained a like condition as the said bond, and that it also contained a power of sale, whereby in case of default in the payment of the said sum of money, the interest that might grow due there- on, or any part thereof, the said C. D., or his assigns, were duly empowered to sell the said mortgaged premises in due form of law, and out .of the moneys arising from the sale, to pay the said sum of money and interest, with the costs and expenses of the proceedings thereupon, the surplus to be returned to the mortgagor ; that thereafter the said C. D. duly assigned said bond and mortgage to E. F. ; that thereafter default was made in the payment of the money secured by the said mortgage, whereupon the said E. F. commenced proceedings by virtue of 1 See ante pp. 374, 425 ; Laws of 1874, c. 208. The method of procedure is Dot pointed out at length,. but ia the same as in proceedings by landlords to obtain possession of demised premises for non-payment of rent, or for holding over after the expiration of a term. The practice in ordinary cases is quite fully set forth in Judge Mc Adam's treatise on Landlord and Tenant, and in Wait's Practice, vol. 5, pp. 409, et seq. 576 APPENDIX OF FOKMS. the said power of sale contained in said mortgage, and in pur- suance of the statute in such case made and provided, to fore- close the said mortgage by a sale of the premises therein described at public auction ; that due notice was given of the time and place of such sale, in the manner required bylaw ; and that thereafter, to wit, on the day of , 18 , the said premises were under the said power of sale duly sold to and purchased by deponent for the price of dollars, that being the highest sum bidden for the same ; that the affidavits of publication and affixing the notice of sale, and of service of such notice, and of the circumstances of the sale, showing such fore- closure and the proceedings thereupon, and which affidavits are required by law to be made, were duly made, and that they were on the day of , 18 , duly filed in the office of the clerk of the county of , that being the county where the said mort- gaged premises were and are situated, and where said sale took place ; and that they were also on that day duly recorded at length by such clerk in a book kept by him in his said office for the record of mortgages, to wit, in Book of Mortgages commencing at page ; * that after the title to the said mortgaged premises had been fully perfected in this deponent, by the filing and recording of the said affidavits as aforesaid, this deponent demanded possession of the said premises from said A. 13., who was then and is now in possession thereof [or from M. ]Sf., who was then and who is now in possession thereof, claiming to hold the same by some right or title derived from the said A. B., the said mortgagor, subsequent to the execution and delivery of said mortgage], by virtue of said title under said foreclosure, and that the said A. B. [or M. 1ST.] refused to surrender said possession, and that he holds over and continues in possession of the said premises after the perfection of said title under said foreclosure proceedings, and after such demand aforesaid, with- out permission of this deponent, who is entitled to the possession ■ thereof. Sworn, etc. No. 56. Summons in Summary Proceedings to obtain Possession after Fore- closure by 'Advertisement. To A. B. and M. N"., and each and every person in possession of the premises hereinafter mentioned, or claiming the possession thereof. Whereas, has made oath in writing, and presented the same to me, that heretofore A. B., being the owner of the APPENDIX OF FOEMS. 5Y7 premises hereinafter described, and being indebted to C. D. in the sum of dollars, upon his bond for that sum, dated on the day of , 18, and payable in one year after said date, with interest thereon payable semi-annually, the said A. B. and M. his wife executed, acknowledged and delivered to said 0. D. a mortgage to secure the payment of said bond, [Follow in the language of the affidavit, Form No. 55, to the *,] that after the title to the said mortgaged premises had been fully perfected in the said , the said deponent, by the filing and recording of the said affidavits as aforesaid, the said , the said deponent, demanded possession of the said premises from you, the said A. B., who were then and are now in possession thereof [or from M. N., who was then and is now in possession thereof, claiming to hold the same by some right or title, derived from the said A. B., the said mortgagor,] subsequent to the execution and delivery of the said mortgage, and that you the said A. B. [or M. N.] refused to surrender said possession, and that you hold over and continue in possession of the said premises after the perfection of said title under said foreclosure proceedings, and after such demand aforesaid, without permission of said the said deponent, f Therefore, in the name of the People of the State of New York, you are hereby required forthwith to remove from the said premises, or show cause before me, at my office, number , in the city of , on the day of , 18 , at o'clock in the noon of that day, why possession of the said premises should not be given to the said , the said applicant. Witness my hand, the day of , 18 . X. T., Justice of the Peace. No. 57. INDORSEMENT UPON THE FOREGOING SUMMONS. Act Relative to Summary Proceedings. Passed Hay 19th, 1868, being chapter 828 of the Laws of 1868. § 3. It shall be the duty of every person, to whom a copy of the summons shall be delivered in pursuance of subdivision .two or three of section thirty-two , of title ten, chapter eight, part three of the Revised Statutes, to deliver such copy to the tenant, to whom the same is directed, or, if such tenant cannot be found, to his agent for the demised premises, without any avoidable delay ; and a copy of this section shall be written or 37 57.8 APPENDIX OF. FORMS. printed on the outside of every such copy. If neither the tenant nor his agent can be found for that purpose, then the person, to whom such copy is delivered, shall take the same to the magistrate, by whom the summons is issued, at the time and place named therein, and inform him, that the tenant cannot be found. Every person, who shall wilfully violate any of the provisions of this section, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by im- prisonment for not less than thirty days, nor more than one year. No. 58. WARRANT TO OBTAIN POSSESSION, IN SUMMARY PROCEEDINGS. To the sheriff of the county of , or to any constable of said county. Whereas, has made oath in writing, and presented the same to me, that heretofore A. B., being the owner of the premises hereinafter described, and being indebted to C. T>. in the sum of dollars, upon his bond for that sum, dated on the day of , 18 , and payable in one year after said date, with interest thereon payable semi-annually, the said A. B. and M. his wife executed, acknowledged and, delivered to said 0. D. a mortgage to secure the payment of said bond {Follow in the language substantially of the summons, Form Mo. 56, to the'f."] Whereupon I issued a summons, requiring the said A. B. and M. N\, and each and every person in possession thereof, forthwith to remove from the said premises, or show cause be- , fore me, at a certain time now past, why the possession of the said premises should not be delivered to the said [If 'a counter-affidavit has been interposed' and a trial had, here recite the proceedings] ' and no good cause having been shown, or in any way appearing to the contrary, and due proof of the service of such summons having been made to me ; Therefore, in the name of the People of the State of New York, you are commanded to remove all persons from said prem- ises, and put the said into the full possession thereof. [If the proceedings are taken before a Justice of the Peace add :'] And you are also hereby commanded to levy and collect the sum of dollars, for the costs of the said proceedings, out of the goods and chattels of the said A. B. and M. ST. excepting such as are by law exempt from execution, and to bring the money which you shall collect, within sixty days •APPENDIX OF FORMS. 579 from the date hereof, before me at my office, in the town of , in the county of , New York, to satisfy the same. In witness whereof, I have subscribed these presents, this day of , 18 . X. Y., Justice of the Peace. No. 59. SHERIFF'S OR CONSTABLE'S RETURN UPON WARRANT. Pursuant to the command of the within warrant, I have this day put the said into the full possession of the premises therein mentioned. Dated this day of , 18 . {Signature of Sheriff or Constable.'] No. 60. Petition in Special Proceeding to Discharge Mortgage of Record. Supreme Court, County. In the Matter of the Petition of A. B. to have a Mortgage discharged of record. To the Supreme Court of the State of New York, in the county of : [or to the Superior Court of the city of New York, or to the Superior Court of the city of Buffalo.] The petition of A. B. respectfully shows, That heretofore C. D. and M. his wife executed a mortgage to E. F., to secure the payment of the sum of dollars, which said mortgage bears date on the day of , 18 , and was on the day of , 18 • , recorded in the office of the clerk of the county of , in Liber of Mortgages, page , and that the following is a description of the mort- gaged premises : [Insert description.'] That more than twenty years have elapsed since the said mortgage was due and payable ; that the same is-now from lapse of time presumed to be paid, and that it has in fact been paid, but that the same still remains undischarged upon the record. 580 APPENDIX OF FORMS. That your petitioner has an interest in the said mortgaged premises, and that he is the owner thereof in fee simple, by virtue of a grant or conveyance from A. B., the said mortgagor. That E. F., the said mortgagee, has been dead for more than five years ; that he died at the city of , on or about the day of , 18 , being at the time of his death a resi- dent of the said city, and that letters of administration upon his personal estate were thereafter duly issued by the surrogate of the county of , to M. N. of the said city, who now resides at said city. That the names and places of residence, aa far forth as the same can be ascertained, of the heirs of E. F., the said mortgagee, are as follows : J. F., the only son and heir of said E. F.,' resides at , in the State of That said mortgage was never assigned by the said E. F., so far as your petitioner is informed, and that no assignment there- of appears of record in the office of the said clerk of county. [or, That said mortgage was duly assigned by said E. F. to G. EL, by assignment in writing, but not acknowledged, so as to en- title the same to be recorded, and that the said G. H. has been paid the amount due thereon.] Your petitioner therefore prays that the said mortgage may be discharged of record. X. Y., Attorney for Petitioner A. B. County of , ss : A. B., the petitioner above named, being duly sworn, says, that the foregoing petition is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. Sworn, etc. A. B. No. 61. OKDER TO SHOW CAUSE. At a special term, etc. [Title as in preceding form.'] On reading and filing the petition of A. B., praying that a mortgage executed by O. D. and M. his wife to E. F., dated the day of , 18 , and recorded in the office of the clerk of the county of , on the day of , 18 , in Liber , of Mortgages, page , [and which mortgage was assigned by E. F. to G. H.], upon premises situate in the said county of , may be discharged of record, on motion of X. Y., attorney for the said petitioner, APPENDIX OF FORMS. 581 It is ordered that all persons interested show cause at a special term of this court, to be held at chambers at the court house in the city of , on the day of , 18 , at o'clock in the forenoon of that day, why the said mortgage should not be discharged of record. It is further ordered, that this order be published in the , a newspaper published in the county of , once in each week for weeks successively, and that a copy of this order be served personally on M. N., administrator, &c, of E. F., deceased, on J. F. and on G. H., at least days before the day hereinbefore appointed for showing cause. No. 62. ORDER OF REFERENCE. At a special term, etc. \Title as in No. 60.] It appearing to the court that the order made in this matter on the day of , 18 , was duly published and served as was therein directed, on motion of X. Y., attorney for the petitioner, no one appearing in opposition thereto, It is ordered, that it be referred to K. S., Esq., of the city of , counselor at law, to take and report proofs of the facts stated in the said petition. No. 63. REFEREE'S REPORT. {Title as in No. 60.] To the Supreme Court of the State of New York : I, the undersigned, appointed a referee in and by an order of this court made on the day of , 18 , to take and report proofs of the facts stated in the petition in this matter, do hereby respectfully report : That I caused a notice in writing of the hearing on said ref- erence to be served upon M. N., administrator, &c, of E. F., de- ceased, on J. F. and on G. H. [fourteen] days before the said hearing, which more fully appears by the notice of hearing which is hereunto annexed. That on the day appointed in said notice, to wit, on the day of ,18 , I proceeded to execute said order in the presence of X. Y., attorney for the petitioner, no one ap- pearing to represent any adverse interest, and that I have taken 582 APPENDIX OF FORMS. proofs of the facts stated in said petition, which said proofs were all reduced to writing and signed by the several witnesses, and which are annexed to this report. Dated, etc. K. S., liefer ee. NO; 64. ORDER DISCHARGING MORTGAGE OF RECORD. At a special term, etc. [Title as in Wo. 60.] On reading and filing the report of R. S., Esq., referee in this matter, to whom it was referred to take and report proofs of the facts stated in the petition herein, and it appearing to the satisfaction of the court by the proofs taken by the said referee and annexed to his said report, that the matters alleged in the said petition are true, on motion of X. Y., attorney for the said petitioner, no one appearing in opposition thereto, It is ordered, that the mortgage executed by C. D. and M. his wife to E. F., dated the day of , 18 , and re- corded in the office of the clerk of the county of , on the day of , 18 , in Liber of Mortgages, page , upon premises situate in the said county, be discharged of rec- ord ; and that the clerk of the county of , upon being furnished with a certified copy of this order, and. paid the fees allowed by law for discharging mortgages, shall record this order and make the proper entries in his books showing such discharge. No. 65. MORTGAGE OF PERSONAL PROPERTY. ORDINARY FORM. To all to whom these presents shall come, know ye that I, A. B., of the town of , in the county of , and State of New York, party of the first part, for securing the payment of the money hereinafter mentioned, and in consideration of the sum of one dollar to me duly paid by C. D., of the same place, party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant, bargain and sell unto the said party of the second part, one gray mare named " Mary," and all other goods and chattels men- tioned in the schedule hereunto annexed, and now in the stable used by me in said town of . To have and to hold, all and singular the goods and chattels above bargained and sold, or APPENDIX OF FORMS. 583 intended so to be, unto the said party of the second part, his executors, administrators and assigns forever. And I, the said party of the first part, for myself, my heirs, executors and administrators, all and singular the said goods and chattels above bargained and sold unto the said party of the second part, his heirs, executors, administrators and assigns, against me, the said party of the first part, arid against all and every person or persons whomsoever, shall and will warrant, and forever defend. Upon condition, that if I, the said party of the first part, shall and do well and truly pay unto the said party of the second part, his executors, administrators or assigns, the just and full sum of dollars, in days after the date hereof, in which said sum I am now justly indebted to him for money loaned and advanced by him to me, then these presents shall be void. 1 And I, the said party of the first part, for myself, my executors, administrators and assigns, do covenant and agree to and with the said party of the second part, his executors, administrators and assigns, that in case default shall be made in the payment of the said sum above mentioned, then it shall and may be lawful for, and I, the said party of the first part, do hereby authorize and empower the said party of the second part, his executors, administrators and assigns, with the aid and assistance of any person or persons, to enter any dwelling-house, store, and other premises, and such other place or places as the said goods or chattels are or may be placed, and take and carry away the said goods or chattels, and to sell and dispose of the same for the best price they can obtain ; and out of the money arising therefrom, to retain and pay the said sum above mentioned, and all charges touching the same ; rendering the overplus (if any) unto me or to my executors, administrators or assigns. And until default be made in the payment of the said sum of money, I am to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same. In witness whereof, I, the said party of the first part, have hereunto set my hand and seal the day of , dne thousand eight hundred and Sealed and delivered ) in the presence of ) {Signed) A. B. [l. s.] 1 A mortgage payable in one day after its date, affords the most satisfactory sort of security for the mortgagee, since a default occurs at once, and the mortgagee can protect himself against the s fraud ofthe mortgagor or the claims of his creditors, by taking possession at any time. If the mortgage be payable on demand, a demand must be made before possession can be obtained. See ante, pages 444, 445. 584 APPENDIX OF FOEM9. Schedule Refeered to in the Foregoing Mortgage. One gray mare named " Mary." One wagon, painted red. One set of single harness. Two blankets. (Signed) A. B. No. 66. STATEMENT OF MORTGAGEE ON REFILING CHATTEL MORTGAGE. I, C. D., the mortgagee within named, do certify and state that there remains due and unpaid on the mortgage of which the foregoing [or within") is a true copy, the sum of dollars, and interest thereon from the day of , 18 , which sum is the amount of my interest in the property described in said mortgage claimed by me by virtue thereof. Dated this day of , 18 . {Signed) C. D. No. 67. Power of Attorney to Foreclose Chattel Mortgage. Short Form to be Indorsed on Mortgage. I, C. D., do hereby nominate and appoint S. T. as and for my true and lawful attorney, for me and in my name to take possession of the goods and chattels, described in the within mortgage [or, if the power to foreclose is written on a different paper, describe the mortgage^, and to foreclose the said mortgage by a sale of said goods and chattels, in conformity with the power therein contained, and I authorize my said attorney to do all acts for me and in my behalf, which I under the said power and under said mortgage could lawfully do, and for that purpose to procure the aid or assistance of any person or persons. And I also covenant with the said S. T., thajt the sum of, dollars, and interest thereon from the day of , 18 , is now justly owing to me on the said mortgage, that I am the lawful owner and . holder thereof, and that I will indemnify and hold him harmless for any acts done by him in carrying out and executing the power hereinbefore granted to him. Dated the day of , 18 . (Signed) C. D. [l. s.] APPENDIX OF FORMS. 585 No. 68. NOTICE OF SALE UNDER CHATTEL MORTGAGE. By virtue of a chattel mortgage, executed by A. B. to C. D., dated on the day of , 18 , and which was duly fUed in the office of the clerk of the town of , I will expose for sale at public auction at , in the said town of , on the day of , 18 , at o'clock, in the forenoon of that day, the following goods and chattels, to wit : One gray mare named "Mary;" one wagon, painted red; one set of single harness ; two blankets. Dated the day of , 18 . {Signed) W. X., _ Auctioneer. • INDEX TO EORMS. ACTIOK TO FORECLOSE, complaint in, 520. notice of pendency of action, 532. of no personal claim, 532. of application for judgment, 533. affidavit on application for judgment, 533. order of reference preliminary to judgment, 534. summons to attend before referee, 535. report of referee, whole amount due, no infants or absentees, 536. whole amount not due, no infants or absentees, 537. whole amount due, infants or absentees, 539. judgment of foreclosure and sale, 540. part only being due, premises to be sold in one parcel, 542. premises to be sold in separate parcels, 543. sale in parcels in inverse order of alienation, 544. provision for deficiency, one defendant being surety, 544. notice of sale under judgment, 545. terms of sale, 545. referee's report of sale, 547. order confirming report of sale, 548. request to docket judgment for deficiency, 548. execution for deficiency, 549. affidavit on applying for writ of assistance, 550. order for writ of assistance, 551. writ of assistance, 552. affidavit on applying for receiver of rents, 553. order appointing receiver of rents, 554. bond of receiver, 554. proceedings to distribute surplus, 555. See Surplus Proceedings. ACTION TO REDEEM, complaint in, 566. with demand for assignment, 567. order of reference, mortgagee being in possession, 568. judgment, 569. affidavit of mortgagee of non-payment of money, 570. final order dismissing complaint, 570. 588 INDEX TO FORMS. AFFIDAVIT, on applying for judgment in foreclosure, 533. on applying for writ of assistance, 550. for receiver of rents, 554. for reference as to surplus, 556. of mortgagee of non-payment in action to redeem, 570. of affixing notice of foreclosure by sale in book of county clerk, 572. upon court house door, 573. of publication of notice of foreclosure by sale, 573. of service of the notice, 574. of the fact of the sale, 574. CHATTEL MORTGAGE, ordinary form, 582. statement on refiling, 584. power of attorney to foreclose, 584. notice of sale under, 585. COMPLAINT, in action to foreclose, 529. in action for strict foreclosure, 561. iu action to redeem, 566. DISCHARGE OF MORTGAGE, special proceeding for, 579. petition, 579. order to show cause, 580. order of reference, 581. referee's report, 581. order discharging mortgage of record, 582. EXECUTION, for deficiency after foreclosure and sale, 549. FORECLOSURE. See Action to Foreclose; Strict Foreclosure ; Foreclosure by Advertisement. FORECLOSURE BY ADVERTISEMENT, notice of sale, 570. a short form of notice, 571. affidavit of affixing notice in book kept by county clerk, 572. made by any other person than the county clerk, d72. of affixing notice on court house door, 573. of publication of notice, 573. of serving notice, 574. of the fact of the sale, 574. summary proceeding to obtain possession, affidavit in, 575. summons in, 576. indorsement upon the summons, 577. warrant to obtain possession, 578. sheriffs or constable's return upon warrant, 579. JUDGMENT, of foreclosure and sale, 540. part only being due, premises to be sold in one parcel, 543. INDEX TO FORMS. 589 JUDGMENT— continued. of foreclosure — premises to be sold in separate parcels, 543. sale in parcels, in inverse order of alienation, 544. provision for deficiency, one defendant being surety, 544. request to docket, for deficiency, 548. in strict foreclosure, 564. in action to redeem, 569. MORTGAGE OF PERSONAL PROPERTY, form of, 582. See Chattel Mobtga&e. NOTICE of pendency of action to foreclose, 532. of no personal claim, 532. of application for judgment in foreclosure, 533. of sale under judgment, 545. of motion for reference to distribute surplus, 557. to confirm referee's report as to surplus, 560. of sale, in foreclosure by advertisement, 570, 571. under chattel mortgage, 585. ORDER of reference to compute, in foreclosure, 534. mortgagee being in possession, 568. confirming referee's report of sale, 548. for writ of assistance, 552. appointing receiver of rents, 554. • of reference as to claims for surplus, 557. extending time for redemption in strict foreclosure, 565. final, in strict foreclosure, 566. in action to redeem, 570. to show cause in proceeding to discharge mortgage, 581. of reference in proceeding to discharge mortgage, 581. discharging mortgage of record, 582. POWER OF ATTORNEY, to foreclose chattel mortgage, 584. RECEIVER OF RENTS, affidavit on applying for, 553. order appointing, 554. bond of, 1 554. REDEMPTION, order extending time for, 565. See Action to Redeem. REFEREE'S REPORT, of amount due, no infants or absentees, '536. whole amount not due, no infants or absentees, 537. whole amount due, infants or absentees, 539. of sale in foreclosure, 547. as to claims for surplus, 558. on proceeding to discharge mortgage of record. 581. STRICT FORECLOSURE, complaint in action for, 561. 590 INDEX TO FORMS. STRICT FORECLOSURE— continued. judgment, 564. order extending time for redemption, 565. final order, 566. SUMMARY PROCEEDING, to obtain possession after foreclosure, 575. summons in, 576. indorsement upon the summons, 577. warrant to obtain possession, 578. sheriff's or constable's return upon the warrant, 579. SUMMONS, to attend reference, in action to foreclose, 535. in proceeding to distribute surplus, 558. SURPLUS PROCEEDINGS, in action to foreclose, 555. notice of claim to surplus, 555. affidavit on applying for reference, 556. notice of motion for reference, 556. order of reference as to claims for surplus, 557. summons to attend reference, 558. certificate of clerk as to appearances and notices of claim, 558. referee's report, 558. notice of motion to confirm report and distribute surplus, 560. order directing distribution of surplus, 560. WRIT OF ASSISTANCE, affidavit on applying for, 553. order for, -551. form of. 552. GENERAL INDEX. ACCEPTANCE of conveyance containing covenant to assume, 194. See Assuming Mortgage. of chattel mortgage, 474. ACCOUNT of mortgagee in possession, 79. right to, of mortgagor of chattels, 448. ACKNOWLEDGMENT, certificate of, to entitle paper to record, 148. who may certify, 148,417 n. ACTION OF STRICT FORECLOSURE. See Strict Foreclosure. ACTION ON BOND, equity of redemption cannot be sold, 393. forbidden, after commencing foreclosure, unless authorized, 393. rule extends to other actions at law, 393. and to action for deficiency, 394. when authority to sue will be given, 395. limit of the rule, 396. • foreclosure forbidden after entry of judgment in, 397. until remedy at law is exhausted, 397. ACTION TO FORECLOSE, who are proper plaintiffs in, 239. where mortgage is assigned as security, 239. where there are joint mortgages, 239. a surety for the mortgage debt, 240. an executor may foreclose against a co-executor, 241. a legatee of the mortgage, 241 . test as to who may foreclose, 241. when a foreign executor may foreclose, 242. how objection to, may be raised, 242. who are necessary defendants in, 243. where one of two joint mortgagees foreclosss, 239,242. owner of equity of redemption, 243. his wife, 203, 243. 592 GENERAL INDEX. ACTION TO FORECLOSE— continued. necessary defendants — grantees of mortgagor, 243. his heirs, 244, 245. his assignee in bankruptcy, 244, 245. his judgment creditors, 244. holders of subsequent liens, 244. tenants in possession, 244. cesluis que trust, 244. legatees holding interests charged on the equity, 245. incumbrancer whose claims are not of record, 24(5. persons claiming adversely to mortgage not proper parties, 246. how defect of parties may be objected to, 246. who. are proper defendants in, 247. a prior incumbrancer, 247. a mortgagor who has conveyed the estate, 247. rule where conveyance is intended as security, 248. a person holding a contract to purchase, 248. a person obligated to pay the deficiency, 248. as if he has assumed the debt, 248. or has guaranteed its payment, 249. or collection, 249. or has given a collateral bond, 249. personal representatives of mortgagor not proper parties, 249. nor his heirs or devisees of other property, 250. when the assignor of the mortgage should be a party, 250. when the assignment was as security, 250. or the ownership of the mortgage is disputed, 250. or the assignment is by parol, 251. notice of lis pendens in, 253. See Notice of Pendency of Action. is in the nature of a suit in equity, 263. a jury trial in, is discretionary with the court, 263. what courts have jurisdiction, 264. is a local action, 264. service of summons in, 264. by advertisement, 265. against unknown owners, 265. upon wife of owner of equity, 265. appearance of defendants in, 266. • GENERAL INDEX. 593 ACTION TO FORECLOSE— continued. effect of unauthorized appearance, 206. when notice of appearance may be served, 266. when revivor of action is necessary, 266, 271. joinder of actions to foreclose, 267. when two actions are proper, 268. consolidation of actions to foreclose, 268. complaint in, 269. where proceedings have been had at law, 269. allegation of interest of defendants, 270. prayer for judgment, 270. supplemental complaint, 270. verification of, 270. notice of' no personal claim, 271 . unnecessary, except to save costs, 271. need not be served with complaint, 271. practice in, on failure to answer, 272. facts to be shown on applying for judgment, 273. affidavit of regularity abolished, 274. notice on applying for judgment, 274, 275. order of reference to compute, 274. rule in New York and Kings counties, 272 n. proceedings on reference to compute, 275. defendants infants or absentees, 276. collecting tax paid by mortgagee, 276. or rent on leasehold, 276. or insurance premiums, 276. reference as to sale in parcels, 276. mortgage payable in installments, 278. where one defendant answers, 278. opening defaults, 278. form and contents of judgment, 279. who may be appointed referee to sell, 272 n., 280. provision as to order of sale in parcels, 280. where prior incumbrancer is a defendant, 281. where mortgage is absolute on its face, 281. where mortgage is payable in installments, 281,328. only applies to covenants to pay money, 282. judgment for deficiency, 282. against whom it may be rendered, 282. must be asked for in complaint, 283. 38 594 GENEEAL INDEX. ACTION TO FORECLOSE— continued. judgment for deficiency, form of, where one defendant is a surety, 283, 284 n. may be rendered though foreclosure is denied, 284. when execution can issue on, 285. when appeal can be taken from, 286. effect of judgment, 268, 285. what claims are not barred by, 285. remedy for erroneous judgment is by appeal, 286. merger of mortgage in, 286. effect of contract subsequent to judgment, 286. what may be litigated in, 287. conflicting claims to equity of redemption, 288. but not claims prior to mortgage, 288. what defences may be interposed, 289. mistake may be corrected, 289. defect of parties as a defence, 290. proceedings at law for same debt, 290. infancy, 291. failure of consideration in purchase money mortgage, 292. there must be an eviction, 292. what an eviction is, 293. what counter-claims are proper, 295. effect of subject clause in deed on right of defence, 298. appointing receiver of rents, 301. costs in, 308. extra allowance in, 313. tender after action brought, 312. offer to allow judgment, 313. distribution of surplus, 376. See Surplus Proceedings. stays actions at law, 393. cannot be brought after judgment at law, 397, until remedy at law is exhausted, 397. ACTION TO REDEEM from usurious mortgage, 218. , borrower need not pay sum loaned, 216. but other persons must offer to pay in complaint, 216. - is a proper remedy of the mortgagor, 230. and is generally the only remedy, 230, 232. parties to, 232. GENERAL INDEX. 595 ACTION TO 'REDEEM.— continued. parties — who may be plaintiff, 232. who are necessary defendants, 233, 234. where there has been a defective foreclosure, 233. court may order a sale to adjust equities, 233. may be united wilh action to cancel, 143, 234,236. complaint in, 235. should contain offer to pay, 218, 235. judgment in, 236. should be for redemption of entire mortgage, 236. should fix a time for redemption, 237. usually from three to six months, 237. which time will not ordinarily be enlarged, 237. though the court has, power to enlarge it, 237. plaintiff must generally pay costs, 237, 311. exceptions to this rule, 237, 311. failure to redeem within time appointed operates as a fore- closure, 238. but a final order must be entered, 238. defendant may ask for foreclosure, 238. appointing receiver of rents, 301. ADJOURNMENT of sale under judgment, 323. when ordered by the court, 324, 325. of sale in foreclosure by advertisement, 409. ADVERSE POSSESSION, lien destroyed by, 139. title by, purchaser at foreclosure sale must take, 359. AFFIDAVITS in foreclosure by advertisement, 417, 420. who may make, 417. by whom oaths may be administered, 417 n. recording of, 418. operate as a conveyance, 419. ALLOWANCES, in addition to costs, 313. in surplus proceedings, 387. APPEALS from judgment for deficiency, 286. from order granting or denying a resale, 352. APPEARANCE in action to foreclose, 266. unauthorized, 266. when notice may be served, 266, 271. what notices defendant who appears is entitled to, 275. ASSIGNEE IN BANKRUPTCY necessary party to foreclosure, 244, 245. 596 GENERAL INDEX. ASSIGNEE OF MORTGAGE, when bound by agreement for pri- ority, 96. should require production of bond, 102. takes subject to equities of the debtor, 103. or of holders of other liens, 106. or of claimants to the mortgage, 109. rights of, rules for determining, 112. when protected by estoppel, 112. See Estoppel. should give notice of assignment to mortgagor, 118. and record the assignment, 1 19. may receive payment, though assignment be as security, 123. has an insurable interest, 175. may foreclose, though assignment be as security, 239. assignor should be made a party, 250. and should be notified of any defence, 252. ASSIGNMENT of vendor's lien, 30. of. debt, carries the mortgage, 16, 101. and collateral covenants, 101. unless they be not assignable, 101 . of mortgage, may be by parol, 101. apart from debt is a nullity, 16, 101. where there is no personal covenant, 13, 102. in cases of chattel mortgage after default, 457. bond should be produced, 102. is subject to equities of the debtor, 103. and holders of junior liens, 106. when subject to equities of other claimants to mort- gage, 108. where negotiable note is secured by, 109. rules for determining what equities are destroyed by, 112. what covenants are implied, 117. when implied covenants may be enforced, 117. notice of assignment to mortgagor, 118. when recording operates as, 119. to junior incumbrancer, when compelled. 128, 222. record of, must be among mortgages, 131, 161. is notice to subsequent assignees, 159. but not to mortgagor, 119, 159. or his grantee, 160. GENERAL INDEX. 597 ASSIGNMENT— continued. record of — except for certain purposes, 160. at a discount, not usurious, 206. unless mortgage be without consideration, 206. infected with usury but given for prior valid debt, 208. when compelled in favor of person redeeming, 128, 222. when not necessary, 222. of chattel mortgage, 457. need not be filed, 503. ASSIGNOR OF MORTGAGE, cannot plead usury, 214, 215. unless assignment be a cover for usury, 214. 'impliedly warrants its validity, 1 17, 252. should be notified of defence, 252. ASSUMING MORTGAGE, nature of agreement, 185. is not an agreement to pay debt of another, 185. and may be by parol, 185. agreement is commonly recited in conveyance, 185. grantee becomes the primary debtor, 92, 186. and grantor is his surety, 186. mortgagor may be released by creditor, 187. , if grantee acquires mortgage it is discharged, 187. grounds of enforcing agreement, 187. where grantor is not personally liable, 188, 191. action at law upon agreement, 189. where agreement is made by junior mortgagee, 190. defences to covenants, 192. mortgagee must claim under contract made by grantor, 193. a promise to assume will not be implied, 194. how covenant is construed, 194. grantee must have accepted conveyance, 194. recording only prima facie evidence of acceptance, 194. fraud or mistake as a defence, 194. burden of proof in such cases, 194. effect of release of grantee by grantor, 1 94. liability of married woman on, 199. when grantee who has not assumed is liable, 304. in cases of chattel mortgages, 455, 456. BADGE OF FRAUD, in chattel mortgage, 475. continued possession of mortgagor is, 475. 598 GENERAL INDEX. BADGE OF FRAUD— con tinned. possession of mortgagor, though the mortgage be filed, 495. overstating claim of the mortgagee, 481. BANKRUPTCY. See Assignee in Bankruptcy. BOND, carries no presumption of validity, 103. purchaser should require production of, 102. possession of, not evidence of a loan, 103. failure to produce,not notice to mortgagor of assignment,l 1 8. unless the payment is of,whole amount, 124. when possession of, is evidence of authority to collect, 123. or of title, 160. should be produced on receiving final payment, 124. and surrendered to the person who"pays, 124. See Action on Bond. BOTTOMEY BONDS, nature and lien of, 524. need not be filed, 526. BURDEN OF PROOF, on allegation that deed is a mortgage, 14. and that it is void for usury, 23. as to acceptance of deed containing covenant to assume, 194. of validity of chattel mortgage, mortgagor being in posses- sion, 476. CANAL BOAT, mortgage of, 517. must be filed in auditor's office, 517. and also as a chattel mortgage, 517. certified copy of, as evidence, 521. CESTUI QUE TRUST, with rights of a mortgagor, 12. when necessary party to action to redeem, 234. to action to foreclose, 244. CHATTEL MORTGAGE on fixtures, as against mortgagee of land,47. on emblements, 52. definition of, 427. valid between the parties, though by parol, 428. and against third persons if property is delivered, 428. absolute transfer shown by parol to be a mortgage, 428. differs from a pledge, 429, 432. (See -Pledge. mortgagee holds a title, 429. form of words to constitute, 430. rights under, differ from rights under pledges, 434. rights of parties under, 442. GENERAL INDEX. 599 CHATTEL MORTGAGE— continued. mortgagee is entitled to possession, 442. unless mortgage, provides otherwise, 442. special agreements for possession, 443. title of mortgagee, debt payable in installments, 445. mortgage made to several persons, 445. rights of mortgagee at law after default, 445. rights of mortgagor at law after default, 446. in equity after default, 447. liabilities and duties of mortgagee on taking possession, 449. foreclosure of, 451. 1 when may be by private sale, 451, 452. who may purchase, 454. surplus belongs to mortgagor, 450. enforcing liability for deficiency, 455. assignments of, 457. apart from the debt, 457. after default, 457. assignee takes subject,to equities, 458. rule as to negotiable instruments, 458. liability of mortgagor for conversion of property, 446,458. rule where property is sold by assignee of mortgagor,458. or by an officer of the law, 459. when disposition of property by mortgagor is a misde- meanor, 459.. when lien is discharged by act of mortgagee, 459. rights under successive mortgages of same chattels, 460. priority of mortgages independent of recording acts, 462. priority as against liens for valuable services, 463. what debts may be secured by, 466. presumption where new advances are made, 467. what law controls as to validity, 467. what description of property is sufficient, 469. schedule, if annexed, is part of the mortgHge, 470. what interests in chattels may be mortgaged, 470. when lien attaches to property not described, 473. must be accepted by mortgagee, 474. validity of, as against creditors and purchasers, 475. continued possession of mortgagor a badge of fraud, 475. what constitutes an actual change of possession, 477. overstating claims of mortgagee, 481. 600 GENERAL INDEX. CHATTEL MORTGAGE— continued. validity— effect of agreement that mortgagor may sell, 481. when void only in part, 487. who may dispute validity, 488. how question of validity may be contested, 491. filing of, 494. when, where and how filed, 494. certified copy as evidence, 497. refiling, 498. statement of mortgagee's interest on refiling, 501. when filing is unnecessary, 502. who may take advantage of omission to file, 504. execution against mortgaged chattels, 508. when interest of mortgagor may be seized, 508. when interest of mortgagee may be seized, 509. when interest of mortgagor cannot be seized, 509. where mortgaged chattels are exempt, 511. when execution becomes a lien, 511. sale by sheriff ignoring the mortgage, 512. in what parcels property should be sold, 513. remedy of mortgagee for an improper sale, 514. of ships and vessels, 517. filing and recording, 517. proving mortgage in judicial proceedings, 521. liability of mortgagee for supplies and repairs, 521. ■ ■ liens for supplies and repairs, 523. COLLATERAL SECURITY does not extinguish mortgage, 132. though payment of, does extinguish mortgage, 135. where payment of, appears by records, purchaser is pro- tected, 135. though proceedings be irregular, 135. COMPLAINT in action to redeem, 218, 235. in action to foreclose, 269. proceedings at law for same debt, 269. allegation as to junior liens, 270. prayer for judgment, 270. supplemental, 270. verification of, 270. COMPOUND INTEREST, when allowed, 88. CONDITIONAL SALES of real estate, 19-23. enforced according to their terms, 19. GENERAL INDEX. 601 CONDITIONAL SALES— continued. how they differ from mortgages, 19. existence of a debt as a test, 20. remedies of the parties as a test, 21 . inadequacy of consideration as a test, 2). nature of prior negotiations as a test, 22. of chattels when held to be valid, 435. though made to secure a debt, 438. need not be filed, 439. but filing will not change their nature, 439. when void as against purchasers and creditors, 440. vendor is owner until condition is performed, 439,440. CONSOLIDATION of actions to foreclose, 268. CONTRACT of purchaser at foreclosure sale, 356. See Sale in Foreclosure. CONVERSION, by wrong-doer, action by mortgagee, 444. when mortgagor of chattels is liable for, 446, 458. amount of debt, the measure of damages, 447. CONVEYANCE executed by mortgagee, effect of, 131. subject to mortgage, effect of, 298. CORPORATION cannot interpose defence of u protect only bona fide purchasers, 154. who record their deeds, 155. what search will make a purchaser safe, 158. REDEMPTION, agreement for, 13, 14. See Defeasance. right of, is destroyed by twenty years' adverse possession, is revived by commencement of foreclosure, 141. widow of mortgagor may redeem, 205. GENERAL INDEX. 627 REDEMPTION— continued. widow of mortgagor may compel assignment, 205. but must contribute her share towards payment, 205. from usurious mortgage, amount loaned must be repaid, 216. b.orrower is exempt from this rule, 216. right of, accompanies every mortgage, 8, 219. how it may be extinguished, 219. may be destroyed by surrender to mortgagee, 220. if defeasance is -parol, surrender may be parol, 220. and purchaser from mortgagee gets good title, 221 . who is entitled to redeem, 221. must have interest in property or a lien upon it, 221. general creditor of the mortgagor not entitled, 221 . but surety for the mortgage debt is, 221. who may claim an assignment on redeeming, 222. a surety for mortgage debt, 222. or a junior incumbrancer, 222. right to assignment springs from its necessity, 223. when mortgagor may claim assignment, 223. holder of a lien not yet due cannot, 224. except in special cases, 224. assignment not always needed, 224. by attorney general to protect mortgage held by the State, 225w. by mortgagee from sale under execution, 225 n. or from tax sale, 225 n. compelling mortgagee to execute assignment, 226. by action, 226. by motion in action brought by mortgagee, 226. practice in such cases, 226. by junior incumbrancer after defective foreclosure, 226. parties to action, 226. action for, barred after ten years, 227." when right of action accrues, 227. - rule when remainderman redeems, 227. rule where some interests are barred and some not, 227. what acts of mortgagee save the statute, 228. commencing to foreclose waives the statute, 141, 228. mortgagor, if in possession, is not affected by statute, 229. should be of the entire mortgage, 236. 628 GENERAL INDEX. REDEMPTION— continued. of chattel mortgage, 447. debt payable in installments, 447. when right of, barred by lapse of time, 448. See Action to Redeem. EEFEREE to compute in foreclosure, 272. to sell in foreclosure, duties of, 319. when disqualified by consanguinity to either party, 320. appointing in New York or Kings counties, 316 n. fees of, 325: may be appointed in foreclosure by advertisement, 413. See Sale in Foreclosure. RELEASE of estate primarily liable, effect of, 94. of grantee by grantor from covenant to assume, 194. of part of premises, when a discharge of mortgage, 135. the part released must be the primary fund, 135. . creditor must have notice of equities, 136. what amounts to notice, 136. recording of transfers, subsequent to mortgage, does not, 137. unless the creditor knows of the record, 137. actual occupancy is notice, 138. discharges mortgage to extent of value of land released, 138. RELIGIOUS CORPORATIONS, mortgaging lands of, 40. authority of court, when necessary, 41 . mortgaging burying grounds, 42. REMEDIES, when controlled to protect equities, 94-96. of mortgagee other than by procuring sale of property, 389. RENT, receiver of, when appointed, 301. is a test of the value of property, 302. right to collect after foreclosure, 367, 369, 372, 374. RE-SALE. See Sale in Foreclosure. RESPONDENTIA BOND, nature and lien of, 524. need not be filed, 526. SALE in foreclosure by advertisement, 410. under chattel mortgage, 451, 453, 454. of mortgaged chattels by the mortgagor, 458, 459. of mortgaged chattels under an execution, 512, 513. SALE IN FORECLOSURE, by what officer it may be made, 316. in New York and Kings counties, 316 n., 317. GENERAL INDEX. 629 SALE IN .FORECLOSURE— continued. publication and posting notice of, 318. in Hamilton county, 318 n. in New York county, 319. what publication is sufficient, 319. contents of notice, 31 9. duties of officer making sale, 319. is not under control of plaintiff, 320. rule as to paying taxes, etc., 321. terms of the sale, 322. adjourning the sale, 323. publication of adjournment, 323. when adjournment should be had, 324. when it will be ordered, 324, 325. fees of officer making the sale, 325. where only a portion of debt is due, 328. provisions of statute, 329. how much of the property should be sold, 331. to raise fund for junior incumbrancer, 332. when .sale should be made in separate parcels, 95, 333. when a sale in bulk is proper, 334. when the judgment of plaintiff should control, 335. undivided interests cannot be sold separately, 336. order of sale in parcels, 95, 336. inversely in order of alienation, 336. where land is mortgaged to the State, 337 n. rules for measuring equities, 337. when order of selling parcels is important, 339. provision in judgment as to order of sale, 340. \7 setting aside the sale, 341. 1\ by motion, 341. when action is proper, 341 . who may make the motion, 342. who is entitled to notice, 343. effect of laches on rights of moving party, 343. effect of setting sale aside, 343. rule where plaintiff becomes the purchaser, 343. inadequacy of price as a ground for, 344. determining value of the property, 344. V irregularity, as a ground for, 345. fraud as a ground for, 346. X 630 GENERAL INDEX. SALE IN FORECLOSURE— continued. setting aside sale, mistake as a ground for, 348. for benefit of infants, 350. when a resale will be denied, 351. terms imposed on ordering a resale, 352. when order granting or denying a resale is appealable, 352. stay of proceedings on appeal, 357. who may purchase, 354. effect of purchase by guardian ad litem, 354. by general guardian, 354. by trustee, 354. purchase for benefit of mortgagor, 11, 355. rule as to puffers, 355. memorandum of purchase, 356. is not a contract, 356. purchaser submits to the jurisdiction, 356. may be compelled to complete the purchase, 356. resale may be ordered at his expense, 357. not compelled to pay more than his bid, 357. may assign his bid, 357. what title purchaser must take, 358. he must point out defects, 359. title by adverse possession, 3591 perpetuating testimony as to title, 359. curing defects in title, 359. where defects are not injurious, 360. irregularity of the judgment, 360. when purchaser is excused, 360. where he is misled by the terms of sale, 361 . making compensation, for defects, 361. rule where he has been delayed, 362. where possession cannot be given, 362. allowance for, improvements on vacating sale, 362. costs on setting sale aside, 362. when allowed to purchaser, 362. by whom to be paid, 363. nature of the title acquired by the purchaser, 364. where proceedings are irregular, 365. as against strangers to the action, 365. holding junior rights in the premises, 365. tenants who were not parties, 367. GENERAL INDEX. 631 SALE IN FORECLOSURE— continued. title as against holders of prior claims who were parties, 368. decree cannot enlarge title conveyed by mortgage, 368. referee cannot exceed authority given by the decree, 368. purchaser cannot claim more than the referee conveys, 368. when rights of purchaser vest, 369. right to collect rent, 369. right to complete purchase, 369. when title passes, 369. when right to possession is complete, 369. act of 1838 allowing redemption after sale, 370. claims to the fund not disposed of by the judgment, 370. obtaining possession, 371. See Writ of. Assistance. SATISFACTION upon the record, 141. certificate of, to be recorded, 141. and properly acknowledged, 141. who may execute, 142. if regular upon record protects purchaser, 142. but if under special authority purchaser must inquire, 142, 143. may be ordered by a court of equity, 143. or a fraudulent satisfaction may be canceled, 143. special proceedings to procure, 143. contents of petition, 143. what courts have jurisdiction, 144. practice in such proceedings, 144. object of the statute, 145. actual payment must be alleged and proved, 145. SHERIFF, action against, for injuring mortgage security, 55. may be ordered to sell in foreclosure, 316. when liable for improper sale of mortgaged chattels, 514. SHIPS AND VESSELS, mortgages of, 517. " mortgages of canal boats, etc., must be filed in auditor's office, 517. and also filed as other chattel mortgages, 518. recording mortgages on vessels of the United Spates, 519. what is a vessel of the United States, 520. certified copy of mortgage on canal boat, etc., as evidence , 521. of vessel of the United States, 521. 632 GENERAL INDEX. SHIPS AND VESSELS— continued. liability of mortgagee for supplies and repairs, 521. liens for supplies and repairs, 523. ■when prior to mortgage, though subsequent in time, 523. bottomry and respondentia bonds, 524. when prior to mortgage, though subsequent in time, 525. need not be filed, 526. STRICT FORECLOSURE, nature of the remedy, 389. is regarded as a severe remedy, 389. when proper in this State, 390. rule its, where an infant is a party, 390. parties to, 390. after irregular foreclosure and sale, 391. judgment in, 391. when title passes, 392. time to redeem may be extended, 392. operates to satisfy debt pro tanto, 392. by failure to redeem in action for redemption, 238. to cure defects in foreclosure by advertisement, 416. SUBROGATION of owner of estate secondarily liable, 94. when payment gives a right of, 135. of insurer to rights of mortgagee, 183. does not take place if mortgagor pays premium, 184. of person standing as surety to mortgage lien, 222. SUMMARY PROCEEDING to obtain possession after foreclosure by action, 374. after foreclosure by advertisement, 425. SUMMONS, service of, in action to foreclose, 264. by advertisement, 265. against unknown owners, 265. upon wife of owner of equity, 265. SURETY may restrain. the committing of waste, 53. when discharged by extension of time, 67, 138. though the consideration for extending be usurious, 68. the mortgagee must know of the relation of, 69. lands of, discharged by extending time, 70. when discharged by refusal to collect, 69. when mortgagor has rights of, 71. is bound by the " interest clause," 76. owner of estate standing as, will be subrogated, 94. when protected by controlling creditor's remedy, 94. GENERAL INDEX. 633 SURETY— continued. discharge by release of primary fund, 135. has an insurable interest, 174. wife mortgaging her lands for her husband's debt is, 198. may redeem mortgage, 221. and demand assignment, 222. who has paid mortgage debt, may foreclose, 240. may request mortgagee to foreclose, 240. may compel sale of property to pay mortgage, 241. SURPLUS PROCEEDINGS, after sale in foreclosure, 376. object of the statute and of the rule, 378. who may institute proceedings, 379. nature of the proceedings. 379. what claims may be litigated in, 380. powers of the court in, 379. who is entitled to surplus, 383, 385. a prior lienor is not, 383. nor a stranger to the action, 383. the mortgagor, 383. junior incumbrancers, 383. the wife or widow of the mortgagor, 203, 204, 387. priority of liens, 383. marshaling of assets, 384. owner of a lease cut off by the sale, 384. computing value of such lease, 384. junior lienor may set up usury against prior lien, 385. when money paid may be reclaimed, 385. are surplus moneys real or personal, property, 43, 385. costs in, 387. when refused, 387. dower right not chargeable with, 205, 388. after foreclosure by advertisement, 422. after foreclosure of chattel mortgage, 450. SURROGATE may authorize execution of mortgage, 42. jurisdiction over surplus after foreclosure by advertisement, 423. TACKING, English doctrine of, 99. is inconsistent with our recording acts, 100. TAXES, paid by mortgagee may be recovered under mortgage, 86, 276. 63-1 GENERAL INDEX. TAXES — con tinned. money paid to purchase tax title not so recoverable, 86. payment of, on sale in foreclosure, 321. TENANT, when a necessary party to foreclosure, 244. effect of appointing receiver on rights of, 306. not made a party, purchaser may refuse to take title, 362. rights of, after foreclosure, 367, 372, 374. TENDER, at common law, 124. with refusal, discharges lien, 125. though the debt remains, 12b. must be of the whole amount 1 , 125. and unconditional, 125. certificate of satisfaction cannot be demanded, 126. must be made to person entitled to receive it, 126. may be made to mortgagee, if no notice of assignment, 126. in legal tender notes, 126. where mortgage is conditioned to support mortgagee, 126. made by any person other than obligor, 127. as by purchaser of equity of redemption, 127. * or owner of junior incumbrance, 127. after action brought, 312. TERMS OF SALE, under judgment of foreclosure, 322. must be reasonable and in conformity with judgment, 345. must not tend to mislead purchasers, 360, 361. in foreclosure by advertisement, 41 0. TIME for payment of mortgage debt, 64-78. may be extended by agreement, 64. what consideration is sufficient, 64. extended by taking new notes, 65. extension does not discharge the security, 65. unless security belongs to a surety, 69. when extension will discharge a surety, 67, 138. effect of mere delay, 68. where extension is upon usurious consideration, 68. when mortgagor may be released by extension, 71. may be shorted under the " interest clause," 76. allowed to redeem in actions for redemption, 237. may be extended, 237. allowed to redeem in strict foreclosure, 391. GENERAL INDEX. 635 TIME — continued. to redeem in strjct foreclosure may be enlarged, 391. TITLE, what, purchaser in foreclosure must take, 358. acquired by purchaser in foreclosure, 364. when passes on strict foreclosure, 392. TRIAL by jury, in action to foreclose, is discretionary, 263. must be had in county where lands are located, 264. TRUST, lands purchased for benefit of debtor, 12. 4 agreement for a lien constitutes a, 27. USURY, penalty for taking, at common law, 4. proof of, as against absolute conveyance, 23. defence of, is destroyed by estoppel, 1 15. to extent of money actually advanced, 115., effect of, on contract, 206. what contracts are usurious, 206. sale of valid mortgage at a discount not usurious, 206. otherwise, if mortgage be without consideration, 206. where agent of lender exacts money for his own benefit, 206. may be purged before delivery of mortgage, 207. question of, does not depend upon location of property, 207. where mortgaged lands are in another State, 208. ' new security taken for usurious debt, 208. effect of, upon prior valid obligations, 28, 208. transfer of usurious security carries the prior valid debt, 208. in purchase money mortgage leaves vendor's lien unim- paired, 209. usurious agreement to extend mortgage, 209. bonus paid is applied on principal, 209. sale under a power in usurious mortgage, 209. bona fide purchaser is protected, 209. to whom the defence of, is available, 209, 385. cannot be set up by a stranger, 210. is a defence for the mortgagor, 210. and those, claiming rights in the estate under him, 210. judgment against mortgagor does not bind prior grantee, 211. right to allege not transferable apart from estate, 211. effect of judgment where one defendant sets up defence, 211. purchaser of mere equity cannot defend, 211. reason of the rule, 212. 636 GENERAL INDEX. USURY — continued. the mortgagor cannot subsequently authorize the defence, 213. but he may by his grant allow the defence, 213. and may indemnify purchaser against the lien, 213. ■whether covenant to assume debt may be released, 213. one who assigns mortgage with guaranty cannot allege usury, 214. unless assignment be a cover for usury, 214. but is liable only for money received, with interest, 214. accommodation guarantor may defend, 214. cannot be set up by the usurer, 215. corporation cannot interpose usury as a defence, 215. except to protect rights derived from other persons, 215. affirmative relief against, 216. rule that the money loaned should be repaid, 216. the borrower exempt from this rule by statute, 216. but he must do justice in other respects, 217. who is a borrower, 217. complaint should offer to pay money loaned, 218. or it will be demurrable, 218. payment will be a conditiou of relief, 218. in chattel mortgage, 466. VALIDITY of chattel mortgages as between the parties, 466. what law controls, 467. as against creditors and purchasers, 475. of chattel mortgages as against creditors and purchasers, 475. where the mortgagor is authorized to sell, 481. when void only in part, 487. of chattel mortgage destroyed by failure to file, 494. VALUE of property, rent is a test of, 302. how determined on application for resale, 344. of lease cut off by foreclosure, 384. VENDEE'S LIEN, nature of, 32. VENDOR'S LIEN, nature of, 27. exists only in favor of vendor, 27. and for purchase money, 27. where a usurious mortgage is given, 28. where the purchaser is guilty of fraud, 2S. GENERAL INDEX. 637 VENDOR'S LIEN— continued. improvements are subject to, 28. and renewal of lease, 29. not affected by disabilities of purchaser, 29. must be paid out of personal estate, 29, 90. when it may be enforced by third person, 30. may be assigned by parol, 30. what amounts to a waiver of, 30. taking a note or bond will not, 30. taking express security will, 31. effect of taking note of third party, 31. or of obtaining a judgment, 31. taking a covenant for a collateral act, 31. priority of, as against other liens, 32. See Equitable Mortgages. is prior to claims of all but bona fide purchasers, 97. is an insurable interest, 181. ' is prior to dower right of vendee's widow, 203. is not affected by taking a usurious mortgage, 209. VERIFICATION of complaint in action to foreclose, 270. VIVUM VADIUM, at common law, 4. WASTE may be restrained by injunction, 52. though mortgagee be in possession, 53. surety may apply for relief, 53. already committed, action for damages for, 54. remedy for, in cases of chattel mortgages, 448. WILL, power to executor to mortgage lands, 37. what language in, makes mortgage a charge on personalty, 89. WRIT OF ASSISTANCE to give possession to purchaser after* foreclosure, 371. cannot issue against a stranger to the action, 371. nature of the writ, 372. may be granted ex parte, 372. when it is a substantial right, 372. extent of the force of the writ, 373. will not be used to protect possession, 373. may be obtained by grantee of purchaser, 373. effect on rights of tenants, 372, 374. restitution where writ has been abused, 374. summary proceedings as a substitute for, 374.