under a power. Ward v. Ward, 108 Ala. 278 (19 So. Rep. 354). The right of a mortgagor to attack a sale under a power, voidable on account of irregularities, may be lost by laches. Eastman v. Littlefield, 164 Ill. 124 (45 N. E. Rep. 137); Quinn v. Perkins, 159 Ill. 572 (43 N. E. Rep. 759). Particular irregularities, coupled with inadequacy of price, held sufficient to set aside sale made under a power. Orr v. Bunker, 134 Mo. 78 (34 S. W. Rep. 1087).

Sec. 603. Sale under power-Purchase by mort gagee. Where a mortgage containing a power of sale expressly stipulates that the mortgagee may purchase at a sale thereunder, this privilege passes to one to whom the mortgage has been assigned. Davis v. Williams, 73 Miss. 708 (19 So. Rep. 352). In Alabama it is held that a sale under a power and a purchase by the mortgagee, where the mortgagee is not authorized to so purchase, does not divest the equity of redemption of the mortgagor. Such mortgagor or judgment creditor who has succeeded to his equity of redemption may redeem from such sale. Norton v. British-American Mortg. Co.,113 Ala. 110 (20 So. Rep. 968).

Sec. 604. Deeds of trust to secure debts. An agreement by the holder of a note secured by a deed of trust to extend the time of payment is not inconsistent with a stipulation in the deed authorizing the holder to declare the whole debt due for failure to pay interest. Smith v. Mc Court, 8 Colo. App. 146 (45 Pac. Rep. 239). Where a deed of trust to secure a debt authorized a sale by advertisement upon default of the debtor and an allowance of a certain per cent. of the proceeds of such sale as a commission paid the trustee for making it, and after such default and after the property has been advertised for sale, but before sale, the debtor, with the knowledge and consent of the trustee, paid the debt, interest and cost of advertising, it was held that the commission for making the sale could not be recovered. Pass v. Brooks, 118 N. C. 397 (24 S. E. Rep. 736). Where a trust deed provides the manner of appointment of a successor in case of the death or disqualification of the trustee such appointment must be made in the manner prescribed. Polle v. Rouse, 73 Miss. 713 (19 So.

Rep. 481). A deed of trust is to be enforced as to terms of sale in accordance with the statute on the subject existing at the time said trust was executed; and a subsequent statute providing for sales under deeds of trust, which provides that such sale shall be on credit, when the law at the date of the trust provided that the sale shall be for cash will not affect the original contract, and the sale may be made for cash notwithstanding said subsequent statute. West Virginia Acts 1882, ch. 140, applied. Walker v. Boggess, 41 W. Va. 588 (23 S. E. Rep. 550). Under Tex. Act, March 21, 1889, a sale under a trust deed must be made on the first Tuesday in the month. McLaren v. Jones, 89 Tex. 131 (33 S. W. Rep. 849). Particular instrument construed and held to be a deed of trust to secure debts and not an assignment for the benefit of creditTittle v. Vanleer, 89 Tex. 174 (34 S. W. Rep. 715; 37 L. R. A. 337).

ors.

Sec. 605.

Sale under deed of trust-Validity-Setting aside. The right to set aside a sale under a trust deed may be lost by laches. Kerfoot v. Billings, 160 III. 563 (43 N. E. Rep. 804). A sale under a trust deed will not be set aside on account of the notice being defective in that it described a larger indebtedness than that secured where there is nothing to show that such defect in the notice was chargeable to fraudulent design, or operated to injuriously affect the property or to deter bidders from the sale. Kerfoot v. Billings, 160 Ill. 563 (43 N. E. Rep. 804). A sale under a deed of trust will not be set aside on account of an inadequacy of price and failure to sell in parcels unaccompanied by fraud or any other irregularity, there being no showing that the property would bring more at a resale. Old Dominion Inv. Co. v. Moomaw, Va. (25 S. E. Rep. 540). A sale under a trust deed will not be enjoined because the whole of the property embraced in it is ordered to be sold where the law permits only the sale of so much as is necessary to satisfy the debt, Moore v. Barksdale, Va. (25 S. E. Rep. 529); nor because the court ordering it omitted to give a day to redeem, or failed to require bond of the trustee before sale, W. Va. Code, 1891, ch. 72, § 6, construed. Watterson v. Miller, 42 W. Va. 198 (24 S. E. Rep. 578), Where a sale under a deed

of trust is made of the property in bulk, for an inadequate price, at an unusual hour, and without notice to one having an interest of record in the land such person may have the sale set aside. Montgomery v. Miller, 131 Mo. 595 (33 S. W. Rep. 165). Ky. Gen. Stat., ch. 63, § 22, providing that "no sale made of any estate by a trustee, by virtue of a deed of trust or pledge to secure the payment of debts, shall be valid, nor shall the conveyance by such trustee pass the title of the property specified in such a deed or pledge, unless the sale thereof shall be in pursuance of a judgment of court, or the maker of such deed or pledge shall join in a writing evidencing the sale," does not invalidate the trustee's sale made without the consent of the grantors in a trust deed where it appears from the face of the instrument and the transaction itself that the writing creating the trust was not intended to be a revocable instrument, but designed to pass the absolute fee. Abbott v. Yeager, 98 Ky. 424 (33 S. W. Rep. 195).

Sec. 606. Indemnity mortgages. Where a husband executes to his wife a mortgage to indemnify her from loss of her inchoate interest in other lands which they have mortgaged to another, and on account of the husband's insolvency and to save expense they execute a quitclaim deed to the mortgagee of such lands, the wife may then foreclose her mortgage for the value of her inchoate interest in the lands so conveyed, less any amount paid by the grantee on account of such inchoate interest. Milburn v. Milburn, 143 Ind. 187 (42 N. E. Rep. 611; 52 Am. St. Rep. 403). In Indiana it is held that where a mortgage given to, secure the mortgagees from loss by reason of their having become surety for the mortgagor contains a stipulation "that the mortgagors will pay the sums of money above secured," if such obligations are not paid when due, the mortgagees, without first having paid the same, can maintain an action for the foreclosure of such mortgage, and recover as damages, a compensation for the total probable loss. Goff v. Hedgecock, 144 Ind. 415 (43 N. E. Rep. 644).

Sec. 607. Mortgage to secure several notes-Foreclosure-Priority. In Missouri it is held that where a trust deed given to secure two notes maturing at different times so

provides a sale of the premises may be had upon the default in payment of either note when it becomes due. Green Co. Bank v. Chapman, 134 Mo. 427 (35 S. W. Rep. 1150). The court say: "It has been said: 'If mortgaged premises are sold upon default in payment of a portion of the debt, the power is thereby exhausted, and the property cannot be sold again upon the nonpayment of installments subsequently accruing.' 26 Am. & Eng. Enc. Law, 896; Burford v. Smith, 7 Mo. 489; Miles v. Skinner, 42 Mich. 181 (3 N. W. Rep. 918)." In Missouri it is held that where a deed of trust given to secure the payment of several notes maturing at different times provides that upon default in the payment of one at its maturity the entire indebtedness becomes due, such default in payment may be cured by a subsequent tender of the amount due before the sale, with interests and accrued costs, and the sale enjoined. Wolz v. Parker, 134 Mo. 458 (35 S. W. Rep. 1149). Where a mortgage is given to secure several notes due at different times the holder of any one note which is due may foreclose without waiting for the other notes to become due or exercising the option given him to declare the entire indebtedness due. Boyer v. Chandler, 160 Ill. 394 (43 N. E. Rep. 803; 82 L. R. A. 113). Where a trust deed is given to secure two notes, in the absence of any stipulation as to priority between them, the proceeds of a sale, if insufficient to pay the notes in full, should be applied pro rata. Wales v. Gray, 109 Mich. 346 (67 N. W. Rep.

334).

Sec. 608. Building and loan association mortgages. A building and loan association mortgage is valid, as against subsequent incumbrances, as to the premium allowed the association and included in the mortgage. New Jersey Bldg., L. & Inv. Co. v. Bachelor, 54 N. J. Eq. 600 (35 Atl. Rep. 745). Where a member of a building and loan association executes a mortgage to it which is recorded but owing to disagreements between them in regard to the deduction of certain charges the loan is never perfected by the money being paid over to him, he is entitled to have the mortgage canceled, and it cannot be retained as security for any of the items which were simply to be deducted out of the proceeds of the loan

when made. Furey v. Knights of P. B. & L. Ass'n, N. J. Eq. (34 Atl. Rep. 380). Where a mortgage to a building and loan association gives it the right to foreclose the same upon the mortgagor's default for three months in the payment of interest and installments of stock, such a default gives the association the absolute right to foreclose at the end of the three months, but it is not compelled to do so at once in order to protect its rights, and its rights upon an accounting are to be determined as of the time it elects to foreclose. United States Sav. & Loan Co. v. Cade, 15 Wash. 38 (45 Pac. Rep. 656). Although a mortgage given to a building and loan association. matures upon the appointment of a receiver for such association he cannot foreclose under a power of sale in the mortgage, the association alone being authorized to do that. Strauss v. Carolina Interstate Bldg. & L. Ass'n, 117 N. C. 308 (23 S. E. Rep. 450; 53 Am. St. Rep. 585). A certificate of stock in a building and loan association issued to one who gives his note and mortgage to such association and which is mentioned in these instruments is admissible in evidence in an action to foreclose such mortgage. United States Sav. & Loan Co. v. Cade, 15 Wash. 38 (45 Pac. Rep. 656). Where a statute (Mill. & V. Tenn. Code, §§ 1751, 1754) requires loans by building associations to be made “in open meeting to the highest bidder" a by-law which has the effect of establishing a fixed premium for loans destroys the competition in bidding and a loan made thereunder is usurious, and a sale under a deed of trust given to secure it may be enjoined. McCauley v. Workingman's Bldg. & Sav. Ass'n, 97 Tenn. 421 (37 S. W. Rep. 212; 56 Am. St. Rep. 813; 35 L. R. A. 244). As to the usurious character of loans made by building and loan associations, see United States Sav. & L. Ass'n v. Scott, 98 Ky. 695 (34 S. W. Rep. 235). For discussion of the constitutionality of statutes permitting the operation of building and loan associations see Livingston Loan & Bldg. Ass'n v. Drummond, 49 Neb. 200 (68 N. W. Rep. 375). Acts 1896, Ch. 120, §§ 146a-146f, regulating the taxation of mortgages, held not applicable to building and loan association. mortgages. Faust v. Twenty-Third German Bldg. Ass'n, 184 Md. 186 (35 Atl. Rep. 890).

Md.