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CHAPTER XI.

CHATTEL MORTGAGE.

STATUTORY PROVISIONS.

ACT OF MAT 11, 1853, IN RELATION TO PERSONAL MOItTGAQES.

Section 1. A mortgage for.a good and valuable consideration upon possessory claims tf> public lands, all buildings and improvements upon such lanSs, all quartz claims, and all other such personal property as shallJae fixed in its structure to the soil, acknowledged in manner and form as mortgages upon real estate are required by law to be acknowledged and recorded in the office of the recorder of the county in which the property is situated, shall have the same effect against third persons as mortgages upon real property.

SUPPLEMENT OP APRIL 29, 1857.

Section 1. Chattel mortgages may be made on the following property to secure the payment of just indebtedness. Upholstery and furniture used in hotels and public boarding-houses, when mortgaged to secure the purchase-money of the identical articles mortgaged, and not otherwise; mining claims, saw-mill, gristmill, and steamboat machinery; tools and machinery used by machinists, foundrymen, and other mechanics; steam-boilers, steam-engines, printing-presses, and other printing materials; possessory claims on the lands of the state, with the improvements thereon; quartz claims, with the machinery and buildings connected therewith; water-ditches, flumes, and aqueducts; tunnels, cuts, and other improvements in mining claims; instruments and chests of a surgeon, physician, or dentist, with their professional library, and libraries of all other persons; stock in any incorporated company. No mortgage made by virtue of this act shall have any legal force or effect (except between the parties thereto), unless the residence of the mortgagor and mortgagee, their profession, trade, or occupation, the sum to be secured, the rate of interest to be paid, when and where payable, shall be set out in the mortgage, and the mortgagor and mortgagee shall make affidavit that the mortgage is bonafide, and made without any design to defraud or delay creditors: which affidavit shall be attached to such mortgage.

Sec. 2. All mortgages made in pursuance of this act (with the affidavit attached) shall be recorded in the county where the mortgagor lives, and also in the county where the property is located ; provided, that property in transitu from the possession of the mortgagee to the county of the residence of the morfgagor, or to a location for use, shall, during treasonable time for such transportation, be considered as locates. It shall be the duty of the county recorders of this state to^provide proper books of record and of index, in which they shall make a true copy or record of all mortgages made in pursuance of the provisions of this act and left with them for record, and they shall enter, in alphabetical order, the names of the mortgagee and mortgagor iu such index books. The recorders shall note on the mortgages and in the index books the time (in like manner as mortgages on real estate) when the same was received into the office for record, and the recording shall take effect from that time. The recorder's fees for recording and indexing shall be the same as are allowed him by law for like services for recording deeds of real estate, to be paid in advance by the person presenting the same for record.

Sec. 3. No chattel mortgage shall be valid (except between the parties thereto) unless the same shall have been made, executed, and recorded in conformity to the provisions of this act; provided, however, if the mortgagee receives and retains the actual possession of the property mortgaged, he may omit the recording of his mortgage during the continuance of such actual possession.

Sec. 4. A right of redemption shall remain in the mortgagor until the same shall have been foreclosed by due process of law, or by agreement between the parties to the mortgage; which agreement shall be entered on the record of the mortgage, and for . the entering of which the recorder shall be entitled to the same rate of fees as for recording the original, to be paid in advance by the parties to the mortgage.

Sec. 5. All property mortgaged in pursuance of the provisions of this act may be attached at the suit of the creditors of the mortgagor or mortgagee. When attached at the suit of the creditor of the mortgagor, such creditor shall pay or tender to the mortgagee the actual amount due him on such mortgage, before the officer making such attachment shall be entitled to the actual possession of such property. When property thus situated, and thus redeemed, shall have been sold by the officer by virtue of due legal proceedings, out of the proceeds of the sale he shall: 1. Pay to the creditor the amount advanced by him to pay the mortgagee, with legal interest thereon. 2. Pay all legal costs and fees appertaining to the judgment, execution, and sale. 3. Pay the judgment creditor the amount of the judgment, and any remaining surplus pay to the judgment debtor. If the creditor of the mortgagor prefers, he may cause to be attached the right of redemption of said mortgagor, and cause the same to be sold, subject to the rights of the mortgagee. Such attachment shall be made by leaving a copy of the writ of attachment, with notice of the attachment, with the mortgagee. When a sale of such equity is made on an execution obtained by such attaching creditor, the sum realized shall be applied to the payment of costs, fees, discharge of the execution, and any remainder paid to the judgment debtor. When the interest of the mortgagee shall be attached, a copy of the writ of attachment shall be left with the mortgagor, with notice of the attachment; and any payment made by him to the mortgagee after such notice, shall not. release the attachment or affect the rights of the attaching creditor; but said mortgagor may pay the amount due on 6aid mortgage to the officer who made the attachment, apd thereupon said officer shall release said attachment, and hold the money so paid him in the same manner as if he had originally attached said money.

Seo. 6. This act shall not be so construed as to interfere or conflict with the lawful mining rules, regulations, or customs in regard to the locating, holding, or forfeiture of claims, but in all cases of mortgages of mining interests under this act, the mortgagce shall have the right to perform the same acts that the mortgagor might have performed for the purpose of preventing a forfeiture of the same under the said rules, regulations, and customs of mines, and shall be allowed such compensation therefor as shall be deemed just and equitable by the court ordering the sale upon a foreclosure; provided, that such compensation shall in no case exceed the amount realized from the claim by a foreclosure and sale.

Sec. 7. The mortgagee in all mortgages made under this act, shall be allowed one day for every twenty miles of the distance between his residence and the county recorder's office, where such mortgage ought by law to be recorded to conform to the provisions of this act, before any attachment shall be valid, made by the creditors of the mortgagor.

Sec. 8. Mortgages may be made on all kinds of water craft of five tons' burden or upward, custom-house measurement, whether propelled in whole or*h>part by steam or wind; provided, that the requirements of the preceding sections are complied with; and provided, further,-4:hat an endorsement shall be made on the custom-house regrster or enrolment of such vessel, showing the amount for whieffthe same is mortgaged, and the place, book and page wherefore' same is recorded: and provided, also, that this section shall at^be construed to affect or impair, in any way whatever, maritime liens.

Tsendmeut Op 1856.

No mortgage of personal property hereafter made shall be valid against any othecTperson than the parties thereto, unless possession of the mortgaged property be delivered to, and retained by, the mortgagee; provided, that a mortgage upon growing crops, executed;-acknowledged and recorded, like mortgages upon real estate, shall be valid as against third parties, without such delivery of possession; but the lien of such mortgage shall cease as against subsequent purchasers, unless possession of such crops, when harvested, be delivered to the mortgagee, as required in other cases of mortgage of personal property.

FROM REVENUE ACT OF 1857.

Sec. 67. "When personal property is under mortgage, or in any manner pledged, it shall, for the purposes of taxation, be deemed the property of the party having possession thereof.

See subjects entitled Assignments and Bill Of Sale.

JUDICIAL DECISIONS.

Where a lease is assigned as security for a note, it is a pledge, and not a mortgage. The "pledgee" does not take the legal title by the assignment, or by failure of the "pledgor" to pay the note; but he has the right to collect the rents, and apply them on the note, and is responsible for the surplus.'

A pledgee has no right to sell until after demand and notice; and if he sells without demand and notice, to a party having full knowledge of his title, no absolute title passes, and the property remains in the hands of the purchaser, as a pledge.'

A party, by pledging negotiable securities transferable by delivery, loses all right to the securities, where transferred by the pledgee in good faith to a third party."

The pledgee in such a case should be treated in the transaction as the agent of the owner, and the owner should be bound by his act in the premises.'

A pledge is a bailment which is reciprocally beneficial to both parties, and therefore the law requires of the pledgee the exercise of ordinary diligence in the custody and care of the goods pledged, and he is responsible for ordinary negligence.'

When the bailors agreed that the goods should be stored in a certain warehouse at their risk and expenses, Held, that their removal by an agent of the bailees, though without their knowledge, charged them for the safe-keeping of the goods after their removal, and that they were responsible for any damage to said goods caused by their removal to an insecure or improper place of storage.'

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