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Theophilus Parsons.

Laws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics online

. (page 49 of 70)
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ar.d grantor) guardian as aforesaid, by virtue of the power and authority in me
vested as aforesaid, and in consideration of the aforesaid sum of
dollars loo to me paid by the said the receipt whereof

is hereby acknowledged, do, by these presents, give, grant, sell, and convey unto
the said (name of the purchaser and grantee) a certain lot or parcel of laud,

situated, bounded, and described as follows (here describe the premises as directed in
Form 107)

To Have and to Hold the aforegranted premises, with all the privileges
and appurtenances to the same belonging, to him the said (purchaser's name)

and his heirs and assigns, to his and their use and behoof forever. And I, the
said (name of guardian) for myself, my heirs, executors, and administrators,

do hereby covenant with the said (name of purchaser) and his heirs and assigns,
that in pursuance of the order aforesaid, I gave public notice of the said intended
sale, in manner aforesaid, and that I took the oath by law required, previous to
fixing on the time and place of sale, and gave the bond previous to said sale.

In Witness AViiereof, I, the said guardian as

aforesaid, have hereunto set my hand and seal, this day of

in the year of our Lord one thousand eight hundred and

(Signature.) (Seal.)

Signed, Sealed and Delivered in Presence of

ts. A.D. 18 . Then personally appeared

the above-named guardian, and acknowledged the

foregoing instrument to be free act and deed.

Before me, Justice of the Peace.

(134.)
Deed of Referee on Foreclosure, in Use in the Middle States.

Tills Indenture, Made the day of in the year one

thousand eight hundred and between (name and residence of the

referee and grantor), a referee duly appointed as hereinafter mentioned, of the



FORMS OF DEEDS. 485

first part, and (name, residence, and occupation of the grantee) of the second

part.

Whereas at a Term of the (name of the court) court, on the

day of one thousand eight hundred and it

was among other things ordered and adjudged by the said court, in a certain action

then pending in the said court, between (names of plaintiff and defendant in

the action)

That all and singular the mortgaged premises mentioned in the complaint in
said action, and in said judgment described, or so much thereof as might be suffi-
cient to raise the amount due to the plaintiff for principal, interest, and costs in said
action, and which might be sold separately, without material injury to the parties
interested, be sold at public auction, according to the course and practice of said
court, by or under the direction of the said party of the first part as referee thereby,
duly appointed for that purpose : that the said sale be made (here state the

directions in the order of court as to the place and time of the sale) that the said
referee give public notice of the tune and place of such sale, according to the course
and practice of said court, and that any of the parties in said action might become
a purchaser or purchasers on such sale ; that the said referee execute to the pur-
chaser or purchasers of the said mortgaged premises, or such part or parts thereof
as should be sold, a good and sufficient deed or deeds of conveyance for the same :

And Whereas, the said referee, in pursuance of the said judgment of the
said court, did on the day of one thousand eight hundred and

sell at public auction at (the place of sale) the premises in the said
judgment mentioned, due notice of the time and place of such sale being first given,
agreeably to the said judgment; at which sale the premises hereinafter described
were struck off to the said party of the second part for the sum of

dollars, that being the highest sum bidden for the same. Now this indenture wit-
nesseth, that the said referee, the party of the first part to these presents, in order
to carry into effect the sale so made by him as aforesaid, in pursuance of the
judgment of the said court, and hi conformity to the statute hi such case made and
provided, and also in consideration of the premises, and of the said sum of money
so bidden as aforesaid, being first duly paid by the said party of the second part,
the receipt whereof is hereby acknowledged, hath bargained and sold, and by these
presents doth grant and convey unto the said party of the second part, the premises
aforesaid, situate, bounded, and described as follows (describe here the premises sold
as directed in Form 107)

To Have and to Hold all and singular the premises above mentioned and
described, and hereby conveyed, or intended so to be, unto the said party of the
second part, his heirs and assigns, to and for his and their only proper use, benefit,
and behoof.

In Witness Whereof, The said referee as aforesaid, hath

aereunto set his hand and seal, the day and year first above written.

(Signature.) (Seal.)
Sealed and delivered in the presence of



486 DEEDS CONVEYING LAND.

STATE OK



!8S.



COUNTY.

On the day of one thousand eight hundred and

before me came known to me to be the individual described in, and

who executed the above conveyance, and acknowledged that he executed the same,

(Signature.)

(135.)
Deed of Collector of Taxes.

To all Persons to whom these Presents shall come, I, (name
cf collector) of La the county of and State of

collector of taxes for said town of duly chosen and qualified at the

last annual meeting of the inhabitants of said town, held on the day

of last past sends greeting :

Whereas, the assessors of said town of (name of the town) in their list of

assessments committed to me, the said (name of the collector) to collect, have

assessed (name of the parly for whose taxes the land is sold) a resident owner

of a certain tract of land situated in said bounded and described as follows,

viz. (describe Hie premises as directed in Form 107) the sum of (amount of tax)
and ioo dollars, as a tax on said premises for the year eighteen hundred and

And Whereas I, the said (name of collector) have demanded payment

of said tax of (name of party taxed) more than fourteen days before proceed-

ing to advertise and sell as hereinafter set forth.

And Whereas the said (name of the party taxed) has given no written

authority to any inhabitant of said town, as his attorney to pay the tax imposed
on said land, and no mortgagee of said land has given written notice to the clerk
of said town, that he the said mortgagee holds a mortgage thereon, nor given
written authority to any inhabitant of said town as his attorney, to pay said tax.

And Whereas I, the said having given public notice of the time

and place of sale of the said land, for the non-payment of said tax, by an advertise-
ment thereof three weeks successively, in the newspaper called the
printed and published in in said county, the last publication of said

advertisement being one week before the time of said sale : also by posting a like
notice on said land three weeks before the time of said sale : and also by posting a
like notice (here state whatever other places the notice teas posted at) being two

public places in said town, three weeks before the time of said sale, which notices
severally contained the name of the said (name of the party taxed) and the

amount of the tax assessed on said land ; also a substantially accurate description
of said land, did, on the day of instant, pursuant to the authority



FORMS OF DEEDS. 487

and notice aforesaid, no person appearing to pay said tax, and it being the opinion
of me, that the said land could not be conveniently divided and a part thereof set
off without injury to the residue, and judging it to be most for the public interest
to sell the whole of said land, sell, at public auction, the said land above described,
to (name of purchaser and grantee) for the sum of and Ioo dollars,

he being the highest bidder therefor.

NOW Therefore, Know Ye, that I the said (name of the collector)

by virtue of the authority in me vested as aforesaid, and in consideration of the
aforesaid sum of and ioo dollars, to me paid by the said (name

of the purchaser) the receipt whereof is hereby acknowledged, do hereby give, grant,
bargain, sell, and convey unto the said all that said tract or parcel of

land above mentioned and described, with the appurtenances thereto belonging.

To Have and to Hold the same to him, the said grantee, his heirs and
assigns, to his and their use and behoof forever ; subject, nevertheless, to the right
of redemption, according to law.

And I, the said grantor, do covenant with the said grantee, his heirs and assigns,
that in making the said sale as above set forth, I have complied with, observed, and
obeyed all the provisions of law for the sale of real estate for the non-payment of
taxes.

In Witness Whereof, I, the said collector, have hereto set my

hand and seal, this day of in the year eighteen hundred

and

(Signature.) (Seal.)
Executed and delivered in the presence of

STATE OF , )

V S3.
COUNTY. ) A.D. 18

Then personally appeared the above-named collector, and acknowl-

edged the above instrument to be his free act and deed.
Before me, Justice of the Peace.

(136.)

Deed of Assignee, in Use in the Western States.

This Indenture, Made this day of in the

year of our Lord one thousand eight hundred and (A.D. 18 )

between (name, residence and occupation of the assignee who is the grantor)

as assignee of (name, residence and occupation of the assignor) of the one

part, and (name, residence and occupation of the purchaser who w grantee)

of the other part :

Whereas, The said (name of the assignor) being lawfully seized in

his demesne, as of fee, among other things, of and hi a certain lot, piece 01 parcel
of ground, situate in the County of and State of i



488 DEEDS CONVEYING LAND.

known and described as follows, to wit (here describe the premises as in Form 107).
And being so thereof seized, did, on or about the day of

A.D. one thousand eight hundred and (A.D. 18 ),

enter into a written contract with the said party of the second part for the sale of
the above-described premises for the sum of dollars.

And Whereas, The said (name of the assignor) did, by his certain

deed of assignment, bearing date the day of

A.D. 18 , grant, bargain, sell, alien, remise, release, convey, assign, transfer and
set over (with other property) the above-described lot, piece or parcel of ground
unto the said party of the first part, his successors, executors, administrators and
assigns forever, in trust nevertheless, to and for the uses and intent and purposes
in said deed of assignment mentioned and set forth, reference thereto being had
may fully and at large appear ; which said deed of assignment is recorded in Book
page of deeds, in the office of the clerk of the Circuit

Court of said county, and ex-oflicio recorder of deeds.

And Whereas, The said assignor did not comply with

the said contract before the execution and delivery of the said deed of assignment
to the said party of the first part,

Now this Indenture Witnesseth, That the said (name of the

assignee and grantor) assignee of said (name of the assignor) for and in

consideration of the sum of dollars (being the balance of the pur-

chase money and interest due on said contract), unto him in hand paid by the said
party of the second part, at and before the ensealing and delivery hereof, the
receipt whereof is hereby acknowledged, by these presents does grant, bargain, sell,
alien, release and confirm unto the said party of the second part, and his heirs
and assigns, all the above mentioned and described lot, piece or parcel of
ground, together with all and singular the rights, hereditaments and appurtenances
thereunto belonging or in any wise appertaining, and all the estate, right, title,
interest, property, claim and demand whatever, that he the said assignor had and
held at and immediately before the execution and delivery of the said deed of
assignment to said party of the first part, and also all the right, title, interest, '
property, claim and demand whatever, that the said party of the first part, acquired
in, under or by virtue of the said deed of assignment by said assignor, to him, the
said party of the first part. To have and to hold the same, together with all and
singular the appurtenances and privileges thereunto belonging, or in any wise
appertaining, and all the estate, right, title, interest and claim whatsoever, either
in law or equity, that said assignor had and held at the time of and immediately
preceding the execution and delivery of said deed of assignment to the said party
of the first part, and all the right, title interest and claim whatsoever of the said
party of the first part, either in law or equity, to the only proper use, benefit and
behoof of the said party of the second part, his heirs and assigns forever.

In Witness Whereof; The said party of the first part has hereunto set his
hand and seal the day and year first above written.

(Signature of assignee.) (Seal.)



FORMS OF DEEDS. 439

STATE OF



,1



83.

COUNTY.

I, a in and for said county, in the Stat*

aforesaid, do hereby certify that who is personally known to

me as the real person whose name is subscribed to the within deed, appeared before
me this day, in person, and acknowledged that he executed and delivered the said
deed, as his free and voluntary act for the uses and purposes therein set forth.
Given under my hand and seal this day of

in the year of our Lord one thousand eight hundred and
(A.D. 18 ).

(Signature.') (Seal.)

(HIT.)

Acknowledgment of Grantor and Wife identified, before Commis-
sioner for another State.

STATE OF )

t [ ss.

COUNTY OF y

Be it Remembered, That on the day of one

V housand eight hundred and before me, commis-

sioner for the State of (name of the State of which he is commissioner) resident

in the of , duly appointed, commissioned, and sworn

to take acknowledgments and proof of deeds and other writings in the State of
, to be used or recorded hi the said State of (name oftht

State of which he is commissioner) and to administer oaths and affirmations, and to
take depositions in the said State of , to be used within the said State

of appeared (name of grantor) and (name of wife of grantor)

hia wife, who are satisfactorily proven to me to be the individuals described in, and
who executed the within deed, from said (name of grantor) and wife to

(name of grantee) by the oath of (witnesses to their identity) who being by

me duly cautioned and sworn, deposed that he knew them, the individuals, then
present, to be the persons described in, and who executed the within deed. The
said and his wife, then and there acknowledged

to ine that they executed the said deed for the purposes therein mentioned ; and
the said (name of the wife) being examined by me privily, and apart

from her said husband, and the contents and effect of the said deed being by me
first duly explained to her, did then and there acknowledge that she executed the
same for the purposes therein mentioned, freely and without compulsion of or from
her said husband.

In "Witness Whereof, I have hereunto set my hand and affixed the seal
of my office, on the day of in the year of our

Lord one thousand eight hundred and

(Signature) (Seal.)



490 MORTGAGES OF LAND.

CHAPTER XXX.

MORTGAGES OF



THE purpose of a mortgage is to give to a creditor the security
of property. It is very similar to a pledge, although not the same
thing.

Mortgages are now made of personal property, as well as of real
property ; but we will consider in this chapter a mortgage of real
property ; or, as it is usually called, a mortgage deed.

This is a deed conveying the land to the creditor as fully, and in
precisely the same way, as if it were sold to him outright ; but with
an addition. This consists of a clause inserted before the clause of
execution, to the effect, that if the grantor (the mortgagor) shall
pay to the grantee (the mortgagee) a certain amount of money at a
certain time, then the deed shall be void. It is usually expressed
in words substantially like these :

" Provided, nevertheless, that if the said A B (the grantor), his
heirs, executors, or administrators, shall pay to the said C D (the
grantee), his executors, administrators, or assigns, the sum of
$ - with interest (semi-annually, or otherwise as agreed on),
on or before the - day of - , then this deed, and also a cer-
tain promissory note signed by said A B, whereby said A B promised
to pay said C D, or his order, the said sum at the said time, shall
both be void; and otherwise shall remain in full force."

In some States it is more frequent to make a bond, instead of a
note, to be secured by the mortgage ; and the proviso should be
altered accordingly ; and it should also be made to express any other
terms agreed on. Some of these will be spoken of presently.

In law, every thing is a mortgage which consists of a valid con-
veyance, and a promise, or agreement, which may be on the same or
on a different piece of paper or instrument, providing that the con-
veyance shall be void when a certain debt is paid, or the act per-
formed for which the mortgage is security.

The mortgagee has now a title to the land ; but it is subject to



MORTGAGES OF LAND 491

avoidance by payment of the debt. Until such payment, the land is
his ; and all the mortgagor owns in relation to it is a right to pay the
debt and redeem the land. Hence, a mortgagee has instantly as
good a right to take possession of the land (unless, as is now com-
mon, the deed provides that the mortgagor may retain possession)
as if he were an outright purchaser.

Formerly, a mortgagor had a right to redeem his land only before
or when the debt became due ; for, if he did not pay the money
when it was due, he had no further right. But courts of equity,
deeming this too hard, allowed him a further time to redeem it.
And courts of law adopted the same rule, which is also contained
in the statutes of all our States. This right to redeem is called a
right in equity to redeem, or, more briefly and commonly, an equity
of redemption ; which all courts now regard and protect. Tho
mortgagor may sell this equity of redemption, or he may mortgage
it by making a second or other subsequent mortgage of the land,
and it may be attached by creditors, and would go to assignees as a
part of his property if he became insolvent. Tho time within which
a mortgagor may thus redeem his land is usually three years.

The law regards this equity as so important, that it will not per-
mit a party to lose it by his own agreement. Thus, if a mortgagor
agrees with the mortgagee, in the most positive terms, or in any way
he can contrive, or for any consideration, that he will have no equity
of redemption, and that the mortgagee may have possession and
absolute title as soon as the debt is due and unpaid, the law seta
aside all such agreements, and gives the debtor his equity of redemp-
tion for three years.

Within a few years, however, a way has been found to effect this
purpose indirectly, which the law sanctions. Many persons object
to lending their money on mortgage, because they will have to wait
three years after the debt is due before the land can be certainly
theirs. But it is now quite common for the mortgage deed to contain
an agreement of the parties, that, if the money is not paid when it is
due, the mortgagee may, in a certain number of days thereafter,
sell the land (providing also such precautions to secure a fair price
as may be agreed on), and, reserving enough to pay his debt and
charges, pay over the balance to the mortgagor. This is called a
power of sale mortgage.

33



492 MORTGAGES OF LAND.

The three years of redemption do not begin from the day when
the debt is due and unpaid, unless the mortgagee then enters and
takes possession for the purpose of foreclosing the mortgage, as the
legal phrase is ; by which phrase is meant extinguishing the equity
of redemption. If the debt has been due a dozen years, the mort-
gagor may still redeem, unless the mortgagee has entered to fore-
close, and three years have elapsed afterwards.

He may make entry for this purpose in a peaceable manner, be-
fore witnesses, as pointed out in the statutes regulating mortgages,
or by an action at law.

If the mortgagor redeems, he must tender the debt, with interest,
and the lawful costs and charges of the mortgagee ; but he will be
allowed such rents and profits as the mortgagee has actually received,
or would have received but for his own fault.

It is commonly thought that the mortgagor has a right to retain
possession until the debt is due and unpaid, and in fact he usually
does so. But we have seen that the mortgagee has just as much
right of immediate possession as a buyer ; and therefore, if it is not
intended that he should have possession at once, the mortgage deed
ought to contain a clause to the effect, that the mortgagor may retain
possession as long as he pays instalments and interest as due, and
complies with his other agreements.

One of these other agreements, which is now very common, is that
the mortgagor shall keep the premises insured in a certain sum for
the security of the mortgagee ; and, if there be such an agreement,
it should be expressed in the deed. Otherwise, if the mortgagee
insures the house, he cannot charge the premium to the mortgagor.

If a mortgagor erects buildings on the mortgaged land, or puts
fixtures there, and the mortgagee takes possession of the land, and
forecloses the mortgage, he gets all these additions. If the mort-
gagee puts them on the land, and the mortgagor redeems, he gets
the benefit of them all, without paying the mortgagee for them.
Such is the effect of the law if there be no bargain between the par-
ties about these things. But they may make any bargain about
them they choose to make.

The remarks which were made at the close of the preceding chap-
ter (just before the forms), concerning the various Forms of deeds



FORMS OF MORTGAGES, ETC. 493

conveying land, apply with equal force to deeds of mortgage of
land ; and I refer to them now because they are equally necessary to
the proper understanding and use of the following Forms.



(138.)

A Promissory Note, to be secured by Mortgage.

18

for value received promise

to pay to dollars, at

with interest at the rate of per cent per annum

This note is secured by a deed of mortgage of even date herewith, from
to which is duly stamped according to the internal revenue

law.

(Signature.)

(139.)

Bond, to be secured by a Mortgage.

Know all Men by tliese Presents, That I (name of obligor)

of in the County of and State of ,

am held, bound and obliged unto (name of obligee) of in the

County of and State of , in the sum of

(penalty, usually twice as much as the actual debt) to be paid to the said (the

obligee) his executors, administrators, heirs or assigns, and to this payment I hereby
bind myself, my heirs, executors and administrators, firmly by these presents.

Sealed with my seal, this day of in the

year

The Condition of the above obligation is such, that if I the said (namt

of the obligor) or my heirs, executors or administrators, shall pay or cause to be
paid unto the said (name of the obligee) the sum of (here insert the

amount of the debt or sum to be secured) on the day of

in the year , with interest at per cent, payable six

months from the date hereof, and every six months afterwards, until the said sum
is paid, then the above obligation shall be void and of no effect ; and otherwise it
shall remain in full force. And I further agree and covenant, that if any payment
of interest be withheld or delayed for days after such payment shall

fall due, the said principal sum and all arrearage of interest thereon, shall be and
become due immediately on the expiration of days, at the option

of s-;iid (name of the obligee) or his executors or administrators.

(Signature.) (Seal.)
(Witness.) ' .



494 MORTGAGES OF LAND.



(14=0.)

Mortgage without Power of Sale and without Warranty, but with
release of Homestead and of Dower.

This Indenture, Made this day of in the

year of our Lord one thousand eight hundred sixty- between (name,

residence and occupation of mortgagor) and (name of wife) -wife of said

(name of mortgagor) parties of the first part, and (name, residence and occu-

pation of mortgagee) party of the second part,

Whereas, The said party of the first part is justly indebted to the said party
of the second part, in the sum of secured to be paid by a

certain promissory note (or bond) (describe the note or bond)



Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 49 of 70)