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Theophilus Parsons.

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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 eqviity
of redemption ; which all courts now regard and protect. Tlie
mortgagor may sell this equity of redemption, or he may mortgngo
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 insolyent. The time within whicli
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 niortgagee 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 c5f days tb.ereafter,
sell the land (providiug also such precautions to secure a fair price
as may be agreed on), and, reserving enougli to pay his debt and
cliargo^', pay over t!ie balance to tlie mortgagor. This is called a
power of sale mortgage.

33



492 MORTGAGES OF LAND.

The three years of redemption do not begin from tne aay ^[\en
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 tliat 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 tliem 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 tlie law if there be no bargain between the par-
lies 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 MOETGAGES, ETC. 493

conveying land, apply with equal force to deeds of mortga<^G 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.

S {^Signature,')

(139.)
Sondf to be secured by a 3lortgage.

Kno^v all Blen by these Presents, That I (name of oUigor)

t)f 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

ohligee) 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 Conditiou of the above obligation is such, that if I the said (name

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

amount of the debt or sum to le 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 smn
is paid, the'n the above obligation shall be void and of no effect ; and otherwise it
ehall remain in full force. And I further agree aqd covenant, that if any payment
of interest be withheld or delayed for days after such j)a}'ment shall

fall due, the said principal sum and all an-earage of interest thereon, shall be and
become due immediately on the expiration of days, at tlie ojition

of .siiid (name nfthe obligee) or his executors or administrators.

(Signature.) [^Scal.)
( Witness.)



494 MOETGAGES OF LAND.



(140.)

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

Tills Indenture, ilade this day of in the

rear of our Lord one thousand eiglit hundred sixty- between (ncuTi*,

residence and occupation <if morlgagor) and {name of vcxfe) mfe of s;dd

(name of mnrt'jngor^ parties of tlie first part, and (^uame, residence and occu-

pation of mortgagee) party of the second part,

Tilierea*!^ The said party of tlie first part is justly indebted to the said party
of the second part, in the sum of secured to be p;ud by a

certain promissory note {or bond) {de.<cribe the note or bond)

Xow, Therefore, this Indenture Witnesseth, That the said parties
of the first part, for tlie better securing the payment of tlie money aforesaid, with
interest thereon, according to the tenor and efiect of the said note {or bond) above
mentioned ; and also in consideration of the further sum of one dollar to us in hand
paid by the said party of the second part, at the delivery of these presents, the
receipt whereof is hereby acknowledged, have granted, bargained, sold and con-
veyed, and by these presents do grant, bargain, sell and convey unto the said party
of the second part, his heirs and assigns forever, all that {here describe the premises
as directed in Form 107 of deeds of land)

To Have and to Hold the Same, Together with all and singul;xr the
tenements, hereditaments, privileges and aj>purtenances thereunto belonging or in
any wise appertaining. And also all the estate, interest and claim whatsoever in
law as well as in equity, which the parties of the first part have in and to the
premises hereby conveyed unto the s;ud party of the second part, and his heirs and
assigns, and to their only proper use, benetit and behoof. And the said parties of
the first part hereby expressly waive, release, relintiuish and convey unto the said
party of the second part and his heirs, executors, administrators and assigns, all
right, title, claim, interest and benefit whatever, in and to the above-described prem-
ises, and each and everj- part thereof, which is given by or results from all laws of
this State pertiiuiing to the exemption of homesteads.

Pro\ided Always, and 'these Presents are upon this Express
Condition, Tliat if the said party of the first part, or his heirs, executors or
administrators sliall well and truly pay or cause to be paid to the said party lif the
second part or Lis heirs, executors, adn.inistrators or assigns, the aforesaiil sum of
money, with such interest thereon, at the time and in the manner specified in the
alxiv (^mentioned note {or bond) according to the true intent and meaning thereof,



FOEMS OF MOPwTGAGES, ETC. 495

then in tliat case, these presents and every thing herein expressed shall be abso-
lutely null and void.

In Witness Tyhereof, The said parties of the first part hereunto set their
hand and -seal the day and year first above ■written.

(Signature of mortgagor.) (Seal.)

{Signalure of wife 0/ mortgagor.) (SeaL)
Signed, Sealed and Delivered in Presence of

State of '^

[-83.

County. )

I in and for the said county, in the State

aforesaid, do hereby certify that (name of mortgagor) personally knoAvn

to me as the same person whose name is subscribed to the foregoing mortgage,
appeared before me ^bis day in person, and acknowledged that he signed, sealed
and delivered the said • instrument of writing as his free and voluntary- act, for
the uses and purposes therein set forth.

And the said (name of wife) wife of the said (name of mortgagor)

having been by me examined, separate and apart, and out of the bearing of her
husband, and the contents and meaning of said instrument of writing having been
by me made known and fiilly explained to her, and she also by me being fully
informed of her rights imder the homestead laws of this State, acknowledged that
ehe had freely and voluntarily executed the same, and relinquished her dower to
the lands and tenements herein mentioned, and also all her rights and advantages
under and by virtue of all laws of this State relating to the exemption of home-
steads, voluntarily and freely and without the compulsion of her said husband, and
that she does not wish to retract the same.

Given under my hand and official seal this day of

A.D. 186

(Sigaaiure.) (SeaL)

(141.)

Mortgage, with Fower of Sale, to secure a Bond, tvithout Hclease

of Dower,

This Indenture, Made the day of in tn«.'

year one thousand eight hundred and between (name, residence,

and occupation of mortgagor) party of the first part, and (name, resilience, and

occupation of mortgagee) party of the second part; Whereas, the said (name

of mortgagor) is justly indebted to the said partj* of the second part, in the sum
of lawful money of the United States, secured to be paid

by a certain bond or obligation bearing even date with these presents, in the pen:J
sum of dollars, la^vful money as aforesaid, conditioned fur the

paj-ment of the said first-mentioned sum of (here state the amount due on the bond,



496 MOBTGAGES OF LAIO).

and ihe thne and terms of paymeni) As by the said bond or obligation, and the con
dition thereof, reference being thereunto had, may more fully appear.

^lOW this Indenture Witnesseth, That the said party of the first part,
for the better securing the pajTuent of the said sum of money mentioned in the
condition of the said bond or obligation, with interest thereon, according to the
true intent and meaning thereof, and also for and in consideration of the sum of
one dollar to him in hand paid by the said party of the second part, at or before
the ensealing and deliverj' of these presents, the receipt whereof is hereby acknowl-
edged, has granted, bargained, sold, aUened, released, conveyed, and confirmed, and
by these presents does grant, targain, sell, alien, release, convey, and confirm unto
the said party of the second part, and to his heirs and assigns forever, all Qierc
describe the premises as directed in Form 107, deeds of land)

Tog^Ctlicr with all and singular the tenements, hereditaments, and appmrte-
nances thereunto belonging, or in any wise appertaining, and the reversion and
reversions, remainder and remainders, rents, issues, and profits thereof: and also
all the estate, right, title, interest, property, possession, claim, and demand whatso-
ever, as well in law as in equity, of the said party of the first part, of, in, and to
the same, and every part and parcel thereof with the appurtenances : To have and
to hold the above granted, bargained, and described premises, with the appurto-
nances, unto the said party of the second part, and his heirs and assigns, to his and
theu" own proper use, benefit, and behoof forever.

Provided Always, and these presents are upon this express condition, that
if the said party of the first part, or his heu-s, executors, or administrators, shall
well and truly pay unto the said party of the second part, or his executors,
administrators, or assigns, the said sum of money mentioned in the condition of
the said bond or obligation and the interest thereon, at the time and in the manner
mentioned in the said condition according to the true intent and meaning thereof,
that then these presents, and the estate hereby granted, shall cease, determine, and
be void. And the said (name of mortjaf/or) for himself and his heirs,

executors, and administrators, does covenant and agree, to pay unto the said party
of the second part, or his executors, administrators, or assigns, the said sum of
money and mterest as mentioned above and expressed in the condition of the said
bond. And if default shall be made in the paj-ment of the said sum of money
above mentioned, or the interest that may grow due thereon, or of any part thereof,
that then and Irom thenceforth, it shall be lawful for the said party of the second
part, or his executors, administrators, or assigns, to enter into and upon all and singu-
lar the premises hereby granted or intended so to be, and to sell and dispose of the
same, and all benefit and equity of redemption of the said party of the first part,
or his heirs, executors, administrators, or assigns therein, at pubUc auction. And
out of the money arising Irom such sale, to retain the principal and interest, which
shall then be due on the said bond or obligation, together with the costs and
charges of advertisement and sale of the same premises, -endering the oveqjlus of
the purchase-money (if any there shall be), unto the said (name of mortgagor)



FORMS OF MORTGAGES, ETC. 4!j7

j)arty of the first part, or his heirs, executors, administrators, or ussi;^ns, •wLich
sale, so to be made, shall forever be a perpetual bar, both in la-w and e(|uity, against
the said party of the first part, and his heirs and assigns, and all other persona
claiming or to claim the premises, or any part thereof, by, from, or under him or
them, or any of them.

Ill "Witness Wliereof, Tlie parties to these presents have hereunto inter-
changeably set their hands and seals the day and year first above written.

(^Signature of mortgagor.) (^Seah)
(^Signature of mortgagee.) (^Seal.)
Sealed and Delivered in the Presence of

State of

County of

On the day of in the year one thousand eight

hundred and before me personally came (^names of both parties') vfho

are known to me to be the individuals described in, and who executed the forego-
ing instrument, and acknowledged that they executed the same.

(^Signature.)

(142.)
Mortgage to secure a Debt, with Power of Sale. Short Fonn.

This Indenture, IMade the day of in the

vear one thousand eight hundred and between (name, residence,

and occupation of mortgagor) party of the first part, and (name, residence, and

/Kcupation of mortgagee) party of the second part, witnesseth, that the said party
of the first part, in consideration of the sum of (the amount of the debt) to

him duly paid before the delivery hereof, has bargained and sold, and by these
presents does grant and convey to the said party of the second part, and his heu-s
and assigns forever, all (here describe the premises as directed in Form 107 of deeds
of land) with the appurtenances, and all the estate, right, title, and interest of the
said party of the fii-st part therein.

This Grant is intended as a security for the payment of (here describe

the debt) which payments, if duly made, will render this conveyance void. And if
default shall be made in the payment of the principal or interest above mentioned,
then the said party of the second part, or his executors, administrators, or assigns,
are hereby authorized to sell the premises above granted, or so much thereof as
will be necessary to satisfy the amount then due, with the costs and expenses
allowed by law.

In Witness Wliereof, the said party of the first part has hereunto set his

linnd and seal the day and year first above written.

(Signature.) (Seal.)

Sealed and Delivered in the Presence of



498 MORTGAGES OF LA203.

State of

County of

Ou the day of ia the year one thousand

eight hundred and before me personally came (name of

rnortgagor), v.'ho is known to me to be the individual described in, and who exe-
cuted, the foregoing instrument, and acknowledged that he executed the same, aa
his free act and deed.

(^Signature.')

(143.)
Mortgage to secure a Debt, fuller Fornix with JPotver of Sale.

This Indenture, Made the day of in the

year one thousand eight hundred and between (name, residence,

and occupation of mortgagor) party of the first part, and (name, residence, and
occupation of the mortgagee) party of the second part :

Wliei'eas, the said party of the first is justly indebted to the said party of the
second part in (here describe the amount and terms of the debt, or note, or bond)

Xow tliis Indenture Witnessetli, That the said p3,rty of the first part,
lor the better securing the debt (or note, or bond ) above described, according to
the true intent and meaning thereof, and also for and in consideration of the sum
of one dollar to him in hand paid by the said party of the second part, at or before
the ensealing and delivery of these presents, the receipt whereof is hereby acknowl-
edged, has granted, bargained, sold, aliened, remised, released, conveyed, and con-
finned, and by these presents does grant, bargain, sell, alien, re'mise, release,
convey, and confirm, unto the said party of the second part, and to his heirs and
assigns forever, all (liere describe the premises as directed in Form 107, deeds of
land)

Together with all and singular the tenements, hereditaments and appm-te
nances thereunto belonging, or in any wise appertaining, and the reversion and
reversions, remainder and remainders, rents, issues and profits thereof. And also
all the estate, right, title, interest, property, possession, claun and demand what-
soever, as well in law as in equity, of, the said party of the first part, of, in, and
to the same, and every part and parct:l thereof with the appurtenances : To hav^.'
and to hold the above granted, bargained and described premises, with the appur-
tenances, unto the said party of the second j)art, and his heirs and assigns, to his
and their own proper use, benefit, and behoof forever.

Provided Always, and these presents are upon this express contlition, that
if the said party of the fii-st, or his heirs, executors, or administrators, bhall well
and truly pay to the said party of the second part, or his h;;u-s, executors, admim's-
ti'utors, or assigns, the above-described debt (or note, or bond) according to terms



FORMS OF MORTGAGES, ETC. 409

and tenor thereof, tlien this deed (and aho said debt or noie or lond') shall be
wholly discharged and void ; and otherwise shall remain in full force and elTect-
And if default shall be made in the payment of the said sum of money above
mentioned, or the interest that may grow due thereon, or of any part thereof, that
then and from thenceforth it shall be lawful for the said party of the second part,
or his executors, adm'nistrators, and assigns, to enter into and upon all and singu-
lar the premises hereiy granted, or intended so to be, and to sell and dispose of the
same, and all benefit and equity of redemption of the said party of the first part,
or his heirs, executors, administrators, or assigns, therein, at public auction, accord-
ing to the act in such case made and provided. And as the attorney of the said
party of the first part, for that purpose by these presents duly authorized, constituted,
aiid appointed, to make and deUver to the purchaser or purchasers thereof, a
good and sufficient deed or deeds of conveyance in the law for the same, in fee
simple, and out of the money arising from such sale, to retain the principal and
interest which shall then be due on the said debt (or note or bond) together with
the costs and charges of advertisement and sale of the said premises, rendering the
overplus of the purchase-money (if any there shall be), unto the said party of the
first part, or his heirs, executors, administrators, or assigns ; which sale, so to be
made, shall forever be a perpetual bar, both in law and equity, against the said
party of the first part, or his heirs and assigns, and all other persons claiming or to
claim the premises or any part thereof, by, from, or under him, them, or either of
them.

In Witness Whereof, The parties to these presents have hereunto set
their hands and seals the day and year first above -wi-itten.

(Signature of mortgagor.) (Seal.')
(Signature of mortgagee.) (Seal.)
Sealed and pelivered in the Presence of

State of )



ss.



County of )

On the day of in the year one thousand eight

hundred and before me personally came (names of both parties) who

are known to me to be the individuals described in, and who executed the forego-
ing instrument, and acknowledged that they executed the same.

(Signature.)

(144.)

Deed Poll of Mortgatje, with Power to sell, and Insurance Clause^
and Release of Dower and Homestead,

Know all Men by these Presents, That I (name, residence and

occupation of mortgagor) in consideration of tome paid by (name,

residence and occupation of mortgagee) the receipt whereof is hereby acknowledged,



500 MORTGAGES OF LAND.

do hereby give, grant, bargain, sell, and convey unto the said [name ofmort-

fjagee) all that lot or parcel of land, with all the buildings thereon standing, situated
in the town (or city) of County, of State of

and bounded and described as follows; that is to say (A(?re describe the premises as
directed in Form 107, in chapter on deeds of land.)

To Mave and to Mold the afore-granted premises, with the privileges,
easements, and appurtenances thereto belonging, to the said grantee, and to his
heirs and assigns, to their use forever.

And I the said grantor, for nij'^self and my heirs, executors and administrators,
do covenant with the said grantee, and his heirs and assigns, that I am lawfully
seized in fee of the afore-granted premises; that they are free from all incum-
brances {if any incumbrance exists, say "except as follows" and describe the
incumbrance,) that I have good right to sell and convey the same to the said
grantee, and his heirs and assigns as aforesaid; and that I will, and my heirs, ex-
ecutors, and administrators shall warrant and defend the same to the said grantee,
and his heirs and assigns forever, against the lawful claims of all persons.

Provkled K^CToirtSjciess, That if the said grantor, or his heirs, executors,
or administrators, shall pay unto the said grantee, or his executors, administrators
or assigns, the sura of dollars j^

ill days (or months) fiom the day of the date hereof, with interest

on said sum at the rate of per centum, per annum, paj'able {semi-annually)

and until such payment keep the buildings standing on the land aforesaid insured
a.eainst fire, in a sum not less than dollars, for the benefit of

said mortgagee and paj'able to him in case of loss, at some insurance office approved
by said mortgagee; or in any default thereof, shall on demand pay to said mortga-
gee all such sums of monej^ as the said mortgagee shall reasonably pay for such
insurance, with interest, and also pay all taxes levied'or assessed upon the said



Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions → online text (page 50 of 70)