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MORTGAGES AND TRUST DEEDS

There are provisions in all jurisdictions whereby, when the mortgage debt has been paid, the mortgagee must enter satisfaction thereof of record, or become liable to certain penalties. The methods prescribed for the enforcement of mortgages vary considerably in the different jurisdictions. In some states they may be enforced only in equity; in others, there are statutory actions provided, as by scire facias; and, in still others, it is permitted to insert a power of sale in the instrument itself under which the mortgagee or other person named therein may, on default, sell the premises conveyed to satisfy the debt. Where trust deeds are used, such a power of sale is given to the trustee, and after due advertisement and notice he may sell as above. Usually after the sale of such realty, either under judicial decree or under such a power, all right, title, and interest of the mortgagor therein is foreclosed; but in some jurisdictions he or his judgment creditors are allowed a certain period within which he or they may redeem the said premises by the payment of the amount for which the property was sold, with interest thereon, together with taxes and costs.

Alabama.-The power to foreclose a mortgage by sale of the property, or otherwise, may be given to the mortgagee without the aid of the courts, and the mortgagee may purchase at the sale, if such power be incorporated in the mortgage. The foreclosure in such instances is governed by the provisions of the instruments. Power to sell the mortgaged lands follows the assignment of the debt. Without such power they are foreclosed in equity. An equity of redemption exists for 2 years after the sale; the debtor must tender to the purchaser, or any one who has the title to such realty, the purchase money with 10 per cent. per annum and all other lawful charges. Vendors of lands have a lien on the land for the purchase money, which may be enforced by a bill in chancery, whether expressed in the conveyance or not, as against all persons having verbal or written notice.

Arizona.-The mortgage may contain a power of sale; whether it does or not, it may be foreclosed by suit in the district court. Without such foreclosure and sale thereunder the owner cannot recover possession. Trust deeds may be given upon all interests in real estate.

Arkansas.-Sales under mortgages and deeds of trust can be made only after appraisement, and the property must bring two-thirds of the appraised value. In case the property be offered and fail to

bring the required amount, it may be offered again after 1 year, and then sold for what it will bring. Realty may be redeemed within 12 months by paying the amount the property sold for, with 10 per cent. interest and costs.

California.-Every transfer of interest in real property, other than in trust, made only as the security for the performance of any act, is to be deemed a mortgage, and the fact that the transfer was made subject to defeasance on a condition may be proved, except as against a subsequent purchaser or encumbrancer for value and without notice, although the fact does not appear by the terms of the instrument. A mortgagee may by action foreclose the right of redemption of the mortgagor; or a power of sale may be conferred by a mortgagor or any other person, to be exercised after a breach of the obligation. Trust deeds may be used. (See Book of Forms.)

Colorado.-The mortgage must be foreclosed by judicial proceedings, and sold by a commissioner or master in chancery, after which the mortgagor has 6 months from the sale within which to redeem, and judgment creditors of the mortgagor have 3 months additional time from the sale within which to redeem. The old form of trust deed has been practically abolished by the act of March 5, 1894. A public trustee is now appointed in each county who must be named as trustee in every such trust deed. In case any other person be named trustee, the instrument is deemed a mortgage, and must be foreclosed the same as a mortgage. In case the public trustee be named, on default he sells the property as provided in the deed, after due advertisement; grantors and their creditors have the same right of redemption after sale as mortgagors.

Connecticut.-Mortgages may be foreclosed by equity proceedings, or by a decree of sale, at the discretion of the court. The mortgagor may redeem within a certain time thereafter fixed by the court, usually from 2 to 6 months. On motion of either party the land will be appraised by three disinterested persons, appointed by the court for the purpose, whose appraisal will be conclusive as to its value, and in any other action upon the mortgage debt the creditor can recover only the excess of the debt above such valuation. Trust deeds are rarely used. (See Book of Forms.)

Delaware.-A mortgage made by the purchaser to the vendor for securing the purchase money or any part thereof, upon being recorded within 30 days after the making thereof, shall have preference to any other lien, although such lien shall be prior in date. Upon foreclosure of mortgages, there can be no redemption of the property.

District of Columbia.-Trust deeds are used to the exclusion of mortgages. They provide for sale by the trustee after advertisement published in a daily newspaper. There is no provision for

redemption from sales made by trustees. They are released by deed from the trustee.

Florida. -All instruments conveying or selling property executed to the creditor directly, or to some person for him, if intended to secure the payment of money, are deemed mortgages. They are foreclosed by a bill in equity in the circuit court, and no redemption is allowed.

Georgia.-Mortgages on realty are not much used in this state, except by corporations, because they are only a lien on property, and do not bar the right of dower. Deeds to secure debts are much preferred, because they pass title, which remains in the vendee until the debt is paid, and consequently bar all claims for dower, year's support, homestead, and the like. Mortgages on realty are foreclosed by petition to the superior court of the county where the land lies, and judgment may be rendered at the second term. In case of deeds to secure debts, the plaintiff simply sues his debt to judgment at common law, in the ordinary way, and then executes a deed of the land to the defendant, and files the same in the clerk's office of the superior court of the county where the land lies, and has it recorded, and then has a levy made on the land, as in case of an ordinary execution. He can purchase at the sale, and his lien is preferred above all other claims which have arisen after the making of his deed. (See Book of Forms.)

Idaho.-Mortgages are foreclosed by action in the district court. Trust deeds with power of sale may be used. Real property sold under decree of foreclosure of any encumbrances, or under execution upon a judgment, may be redeemed at any time time within 1 year from the time of sale by the judgment debtor or his successor in interest, or by any person holding a lien or encumbrance upon the property sold, by paying the amount for which the property was sold and 12 per cent. in addition, and all taxes or assessments which may have been paid by the purchaser subsequent to the sale. If no redemption be made within 1 year the purchaser is entitled to his deed absolute from the sheriff.

Illinois.-All mortgages may be foreclosed in equity, and 12 months from the date of the sale thereof are allowed to all defendants to redeem, and 15 months from the sale, to judgment creditors of the defendants. Mortgages may also be foreclosed by scire facias, but in practice this is seldom resorted to. Trust deeds are more commonly used than mortgages, but must be foreclosed in the

same manner.

Indian Territory.-The title to real estate in this territory is in some one of the several Indian tribes or nations; hence, there are no valid real-estate mortgages here, except in the Creek and Seminole nations. In the latter nations, town property may be mortgaged,

Indiana.-Mortgages of real estate, to be valid as against subsequent purchasers and mortgagees, must be recorded in the office of the recorder of the county in which the real estate is located, within 45 days from the date of execution. Trust deeds are not used, and all such instruments are deemed to be mortgages, the power of sale therein being null and void. All mortgages must be foreclosed by judicial proceedings, and the property sold by the sheriff, who executes a certificate to the purchaser, entitling him to a deed absolute to the property at the expiration of 1 year from the date of sale, unless previously redeemed by the payment of the purchase price with 8 per cent. interest. Mortgages may be assigned on the margin of the record, where recorded, or by other instrument, which should be acknowledged in the same manner as a mortgage, and recorded within 45 days. (See Book of Forms.)

Iowa.-In order that a vendor's lien for unpaid purchase money may be recognized or enforced after a conveyance of the vendee, such lien should be preserved by a conveyance, mortgage, or other instrument, duly acknowledged and recorded. The holder of any real-estate mortgage can foreclose the same only by a civil action brought in the proper court. When a real-estate mortgage is foreclosed and the property sold under special execution, the mortgagor, or his grantee, has 1 year from the date of the sale within which to redeem. Trust deeds may be used, but must be foreclosed by equitable proceedings in the same manner as mortgages.

Kansas.-Mortgages may be foreclosed by suit only. After sale under a mortgage, the mortgagor has 18 months in which to redeem the same, which can be done by paying the amount for which the property was sold, together with interest, costs, and taxes. At any time after the expiration of 12 months from the date of the sale a creditor whose claim is a lien upon the mortgaged property has the right to redeem the same within 15 months after the date of the sale, provided the mortgagor have not within that period exercised the right of redemption. A mechanic's lien, before decree enforcing the same, shall not be deemed such a lien as to entitle the holder to redeem. During the entire period in which the mortgagor is entitled to redeem, he is entitled to the possession of the property. If real property have once been sold under a mortgage and have been redeemed, no execution for any deficiency between the amount of the judgment and the amount for which the property was sold can be levied upon the said property. Trust deeds with power of sale by the trustee are not used. (See Book of Forms.)

order to be valid as They are acknowldecree for less than

Kentucky.-Mortgages must be recorded in against creditors or purchasers without notice. edged as deeds. Land sold under execution or two-thirds of its appraised value may be redeemed in 12 months.

Louisiana.-Mortgages are conventional, judicial, and legal. A conventional mortgage is granted by an act hypothecating designated property for a stated consideration to secure the debt; usually it is made to import a confession of judgment, and may be foreclosed summarily, and on an ex parte order of court. A judicial mortgage results from the recordation of a judgment, and affects all property situated within the parish in which it is recorded. It can only be enforced by execution. A legal mortgage is one granted by law, as that in favor of a minor on his tutor's property. A legal mortgage necessitates a suit to fix rights. (See Book of Forms.)

Maine.-Mortgages may be foreclosed by taking possession by suit, by written consent of the mortgagor, or by peaceable entry in the presence of two witnesses. An abstract of the writ and the return, the written consent, or the certificate is to be recorded within 30 days thereafter. Foreclosure may be made without taking possession by 3 weeks' notice in a newspaper, or by service of notice on the mortgagor, followed by record thereof in 30 days. A period of 3 years thereafter is allowed for redemption, but the parties may agree upon a period of 1 year. Trust deeds are rarely used.

Maryland.—In addition to the formal instrument, the mortgage deed, there is required an affidavit or affirmation by the mortgagee or his agent, that the consideration expressed in the mortgage is true and bona fide as therein set forth, and also that he has not required the mortgagor nor any person for the mortgagor to pay the tax levied upon the interest, nor will require the same to be so paid during the mortgage. To be valid as against creditors it must be recorded within 6 months. (See Book of Forms.)

Massachusetts. -For a mortgage the form of warranty deed is used, with the addition thereto of the condition, and, now almost universally, a power of sale in case of the non-performance of the condition. A mortgage recorded more than 4 months after its date shall not be valid as against an assignee in insolvency of the mortgagor in insolvency proceedings begun after the date of the mortgage and before the expiration of 1 year from the record thereof. A mortgage without a power of sale is foreclosed by entry upon the premises in presence of two witnesses, which must be peaceable and unopposed, and recording the certificate of such entry in the registry of deeds within 30 days thereafter. If not redeemed in 3 years, the foreclosure becomes absolute, unless some payment on account of interest or principal of the mortgage debt have been received by the mortgagee. Foreclosure proceedings may also be taken in the courts. (See Book of Forms.)

Michigan.-Real-estate mortgages may be foreclosed either in chancery, or by statutory advertisement. In the former case the sale cannot take place within 6 months after filing bills, and 6 months'

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