must be recorded as a mortgage; and if such grant and other writing explanatory of its true character are not recorded together, at the same time and place, the grantee can derive no benefit from such record.1 '1 R. S., 756, § 3. assignment § 1439. An assignment of a mortgage may be recorded Recording in like manner with a mortgage, but in a separate book, and such record operates as notice to all persons subsequently deriving title to such mortgage from the assignor.1 1 Vanderkemp v. Shelton, 11 Paige, 37. This section § 1440. Any recorded mortgage must be discharged upon the record thereof, by the officer in whose custody it is, whenever there is presented to him a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged, or proved and certified, as prescribed for grants of real property, specifying that such mortgage has been paid, or otherwise satisfied and discharged. 1 R. S., 761, § 28. § 1441. Every such certificate, and the proof or acknowledgement thereof, must be recorded at length; and a reference made to the book and page containing the record, in the minute of the discharge of the mortgage, made by the officer upon the record thereof. 1 R. S., 761, § 29. Discharge &c., of of records, mortgage. How made. Transfer of title. Foreclosure CHAPTER III. MORTGAGE OF PERSONAL PROPERTY. ARTICLE I. Creation and effect of the mortgage. ARTICLE I. CREATION AND EFFECT OF THE MORTGAGE. SECTION 1442. How made. 1443. Transfer of title. 1444. Foreclosure. § 1442. A mortgage of personal property may be made orally' or in writing. 1 See Bank of Rochester v. Jones, 4 N. Y., 497. § 1443. The title to the thing mortgaged is transferred by the mortgage to the mortgagee,' who may require the immediate possession thereof, unless it is otherwise agreed between the parties.' See Bank of Rochester v. Jones, 4 N. Y., 507; Butler v. § 1444. The mortgagee may foreclose the mortgagor's right of redemption by a sale of the thing, made in the manner and upon the notice prescribed by the title on PLEDGE, or by proceedings under the CODE OF CIVIL PRO CEDURE.' 1 See Patchin v. Pierce, 12 Wend., 63; Hart v. Ten Eyck, 2 Johns. Ch., 100, and cases cited. The reference is to the Code reported complete. ARTICLE II. FILING.1 SECTION 1445. Mortgage must be filed. 1446. How filed. 1447. Renewal of filing. 1448, 1449. Duty of officers. 1450. Certain errors to be disregarded 1452. Copy, &c., when evidence. 'This article is framed in conformity to the law as it at must be § 1445. The mortgage is void as against creditors of the Mortgage mortgagor, and subsequent purchasers and incumbrancers filed. in good faith without notice, unless it is filed as hereafter prescribed.1 13 R. S. (5th ed.), 222; Laws 1833, ch. 279. § 1446. The mortgage is duly filed by depositing the How filed. original, or a copy, 1. In the office of the county register of deeds, if there is one, and his office is situated in the town wherein the mortgagor resides at the time of executing the mortgage, or, if he does not reside in the State, the town wherein the property mortgaged is at such time situated; 2. If there is no register's office so situated, then in the county clerk's office, if it is so situated; 3. If such office is not so situated, then in the office of the clerk of such town.' 1 3 R. S. (5th ed.), 223; Laws 1833, ch. 279; as modified filing. § 1447. The mortgage ceases to be valid, as against credi- Renewal of tors of the mortgagor and subsequent purchasers or incumbrancers in good faith, after the expiration of one year from the filing thereof, unless, within thirty days next preceding the expiration of such term, a copy of such mortgage, and a statement of the amount of existing debt for Duty of officers. Id. Certain errors to be which the mortgagee claims a lien, subscribed by him, are filed anew in the office of the clerk or register, in the town in which the mortgagor then resides, or, if he does not then reside in the State, in the same office in which the mort gage was originally filed.' And, in like manner, the mortgage and statement of debt must be refiled from year to year, or it ceases to be valid,' as against the parties abovementioned. 13 R. S. (5th ed.), 223; Laws 1833, ch. 279; slightly modified, so as to make the section more explicit. 2 Nitchie v. Townsend, 2 Sandf., 299. § 1448. The officers mentioned in the last section must receive and file all such instruments as are offered to them under this article, and indorse thereon the time of receiving the same, and must keep the same in their offices for the inspection of the public. 1 R. S. (5th ed.), 223; Laws 1833, ch. 279. § 1449. Every officer with whom an instrument is filed, pursuant to this chapter, must indorse a number upon the same in regular order, and enter the name of every party thereto in a book kept for the purpose, alphabetically, placing mortgagors and mortgagees under a separate head, and stating in separate columns, opposite each name, the number indorsed on the instrument, the date thereof and of the filing, the amount secured thereby, and the time at which it is due.' 'Laws 1849, ch. 69. § 1450. An instrument is not to be deemed defectively disregarded filed, by reason of any errors in the copy filed, which do not tend to mislead a party interested to his prejudice.' Negligence of officer. Copy, &c., when evidence. 'New. § 1451. The negligence of the officer with whom the mortgage is filed, cannot prejudice the rights of the mort. gagee.1 1 Dodge v. Potter, 18 Barb., 193; Bishop v. Cook, 13 id., 126. § 1452. A copy of any instrument required to be filed under this article, when certified by the officer with whom it is filed, is presumptive evidence of such filing, in the manner and at the time stated in the official indorsement on such instrument. The original indorsement is also evidence to the same extent only.' 13 R. S. (5th ed.), 223; Laws 1833, ch. 279. TITLE XVIII. LIENS. CHAPTER I. Liens in general. II. Liens on real property. III. Liens on personal property in general. IV. Bottomry. V. Respondentia. CHAPTER I. LIENS IN GENERAL. SECTION 1453. Lien, what. 1454. Mortgages. 1455. Judgments. 1456. Mechanics' liens. 1457. Enforcement of lien. 1458. Priority of liens. 1459. Order of resort to different funds. 1460. Extinction of lien. § 1453. A lien is a right to satisfy a claim out of a spe- Lien, what. cific thing, or to retain the same until snch claim is satisfied. § 1454. Mortgages are liens, which are regulated by the Mortgages. title on MORTGAGE, § 1455. Judgments are liens, which are regulated by the Judgments. CODE OF CIVIL PROCEDURE. liens. § 1456. The liens of mechanics, for materials and ser, Mechanics" vices upon real property, are regulated by special statutes. ment of § 1457. The mode of proceeding by a creditor to enforce Enforcea lien within this state, is regulated by the CODE OF CIVIL PROCEDURE.' 1 As reported complete. lien. |