TITLE XVII. MORTGAGE. CHAPTER I. Mortgages in General. CHAPTER I. MORTGAGES IN GENERAL. ARTICLE I. Nature of a mortgage. III. Rights and obligations of the parties. ARTICLE I. NATURE OF A MORTGAGE. SECTION 1419. Mortgage, what. Mortgage, what. What are deemed mortgages. Independent or accessory. 1420. What are deemed mortgages. 1421. Independent or accessory 1422. What may be mortgaged 1423. Agreements in restraint of redemption. 1425. Vessels. § 1419. A mortgage is a transfer of a thing subject to defeasance on the performance of a condition, and made as a security for such performance.1 A mortgage of real property is sometimes called a pledge thereof. (See Robinson v. Williams, 22 N. Y., 382; Power v. Lester, 23 id., 531; Code La., 3246.) § 1420. Every transfer of things, other than a pledge, made for the purpose of a mere security for the performance or non-performance of an act, is deemed a mortgage.' 1 Hodges v. Tenn. Ins. Co., 8 N. Y., 416; Clark v. Henry, 2 Cow., 327. § 1421. A mortgage may be an independent or an accessory contract. It is accessory if made to secure the performance of a separate obligation. In other cases it is independent. be mortga § 1422. Any interest in a thing may be mortgaged, even What may if such thing is at the time possessed by a person claiming ged. adversely to the mortgagor.' 1 1 R. S., 739, § 148. tion. § 1423. No agreement in restraint of the mortgagor's Agreements right to redeem is valid, unless made subsequently to the of redempmortgage, and upon a new consideration.' But the mortgagor may at any time agree to give the mortgagee a preemptive right to the thing in case of sale.' sale. § 1424. A power of sale may be conferred by the mort- Power of gage upon the mortgagee' or any other person, to be exercised upon breach of the condition of the mortgage. Such a power is a trust,' and can be executed only in the manner prescribed by the CODE OF CIVIL PROCEDURE.3 1 Wilson v. Troup, 7 Johns. Ch., 25. 2 Jencks v. Alexander, 11 Paige, 619. § 1425. The provisions of this title do not apply to mort- Vessels. gages of vessels which are required by the laws of the United States to be registered in a custom-house, and which are thus registered. ARTICLE II. EFFECT OF A MORTGAGE. SECTION 1426. On what a lien. 1427. Against whom a lien. 1428. Mortgage of thing held adversely. § 1426. A mortgage is a lien upon everything that would on what a pass by a grant of the thing,' and on nothing more.' 1 Snedeker v. Waring, 12 N. Y., 170; Gardner v. Finley, 19 Barb., 317; Shepard v. Philbrick, 2 Denio, 174; 'Lawrence v. Delano, 3 Sandf., 333. lien. Against whom a lien. Mortgage of thing held adversely. § 1427. The thing mortgaged is bound by the mortgage, in the hands of every one claiming under the mortgagor subsequently to its execution, except purchasers or incumbrancers in good faith, without notice and for value.' 'Query, whether "a good consideration" should not be substituted for "value"? § 1428. A mortgage of a thing held adversely to the mortgagor takes effect from the time at which he, or those claiming under him, obtain possession thereof. But it has precedence over every lien upon the mortgagor's interest in such thing, created subsequently to the recording of the mortgage.' 11 R. S., 739, § 148. Redemption. Foreclosure Mortgage not a personal ARTICLE III. RIGHTS AND OBLIGATIONS OF THE PARTIES. SECTION 1429. Redemption. 1430. Foreclosure. 1431. Mortgage not a personal obligation. 1432. Waste. § 1429. The mortgagor may redeem the thing mortgaged at any time before his right of redemption is foreclosed,' by performing, or offering to perform, the condition of the mortgage, and paying, or offering to pay, the damages to which the mortgagee is entitled for delay.' 'Pratt v. Stiles, 9 Abb. Pr., 150; Hinman v. Judson, 13 Barb., 629. 2 See Kortright v. Cady, 21 N. Y., 343. § 1430. The mortgagee has a right to forclose the mortgagor's right of redemption. Such right is enforced in the manner prescribed by the CODE OF CIVIL PROCEDURE.' 1 As reported complete. § 1431. A mortgage does not bind the mortgagor perobligation, sonally to perform the act for the performance of which it is a security, unless there is an express covenant therein to that effect.' 11 R. S., 738, § 139; Hone v. Fisher, 2 Barb. Ch. R., 569. § 1432. No person bound by the mortgage may do any Waste. act which will substantially impair the mortgagee's security. Van Pelt v. McGraw, 4 N. Y., 111; Gardner v. Heartt, 3 Denio, 232; see Manning v. Monaghan, 23 N. Y., 539, 548. ARTICLE IV. EXTINCTION OF MORTGAGES. SECTION 1433. How extinguished. guished. § 1433. A mortgage which is merely accessory to an How extinindependent obligation is extinguished 1. By the extinction of the principal obligation;' 2. By an offer of performance thereof, duly made.' 1436. Mortgages on lands inherited or devised, by whom to be paid. how created § 1434. The mortgage can be created, renewed or ex- Mortgage, tended, only by writing,' with the formalities required in the case of a grant of real property, or by a deposit of the Right of possession. Mortgages on lands inherited or devised, by title deeds of the property, or the principal part of them,* with intent to mortgage the same.' 3 'Stoddard v. Hart, 23 N. Y., 556. Lacon v. Allen, 3 Drewry, 579. Rockwell v. Hobby, 2 Sandf. Ch., 9. But whether such deposit is anything more than evidence of an agreement to execute a mortgage, query? See Stoddard v. Hart, 23 N. Y., 561. § 1435. A mortgage of real property does not transfer the title' to the property mortgaged, and the mortgagee is not entitled to the possession thereof,' except by the consent of the mortgagor, but such consent when given cannot be revoked.' 1 Kortright v. Cady, 21 N. Y., 343, 364; Stoddard v. Hart, 23 id., 556, 560; Power v. Lester, 23 id., 531. 2 See 2 R. S., 312, § 57. See Waring v. Smyth, 2 Barb. Ch. R., 135. § 1436. When real property, subject to a mortgage, passes by succession or will, the successor or devisee must satisfy whom to be such mortgage out of his own property, without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor, that the mortgage shall be otherwise paid. paid. 1 R. S., 749, § 4. ARTICLE II. How recorded. What must SECTION 1437. How recorded. RECORDING. 1438. What must be recorded as a mortgage. 1439. Recording assignment. 1440. Discharge of records. 1441. Certificate of discharge. $1437. Mortgages may be recorded in like manner with grants of real property, except that they must be recorded in books kept for mortgages exclusively. Such record operates as notice to all subsequent incumbrancers.' 11 R. S., 756. § 1438. Every grant of real property or of any interest be recorded therein, which appears, by any other writing, to be intended as a mortgage within the meaning of chapter I. of this title, as a mortgage. |