« ForrigeFortsett »
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 said mortgage to the officer who made the attachment, and 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.
Sec. 6. This act shall not be so constrúed 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 mort
gagee 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 inpart by steam or wind; provided, that the requirements of the preceding sections are complied with; and provided, further that an endorsement shall be made on the custom-house register or enrolment of such vessel, showing the amount for which the same is mortgaged, and the place, book and page where the same is recorded : and provided, also, that this section shall not be construed to affect or impair, in any way whatever, maritime liens.
--AVENDMENT OF 1856. No mortgage of personal property hereafter made shall be valid against any other person 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.
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.
36 id. 648.
18 Cal. 145. 3 5 id. 260.
OREGON Every mortgage of goods and chattels shall cease to be valid as against the creditors of the person making the same, or subsequent purchasers or mortgagors in good faith, after the expiration of one year from the filing of the same, or a copy thereof, with the Recorder, unless within thirty days next preceding the expiration of the year, the mortgagee, his agent or attorney, shall make and annex to the instrument or copy on file, as aforesaid, an affidavit, setting forth the interest which the mortgagee has, by virtue of such mortgage, in the property therein mentioned, upon which affidavit the Recorder shall endorse the time when the same was filed.
The effect of any such affidavit shall not continue beyond one year from the time when such mortgage would cease to be valid as against the creditors of the person making such mortgage, or subsequent purchasers or mortgagees, in good faith; but within thirty days next preceding the time when any such mortgage would otherwise cease to be valid as aforesaid, a similar affidavit may be filed and annexed, as provided in the preceding section, and with like effect.
The statutes of Washington make no special provision in reference to chattel mortgages. See, in this work, chapters on AsSIGNMENT and BILL OF SALE.
Chattel Mortgage-for Furniture. This indenture, made this thirtieth day of April, in the year of our Lord one thousand eight hundred and fifty-nine, between John Doe, whose residence is at Angel's Camp, county of Calaveras, in the state of California, and who is by profession, trade or occupation, a hotel keeper, party hereto of the first part, and Richard Roe, whose residence is at Sacramento, in the county of Sacramento, in said state, and who is by profession, trade or occupation, a furniture dealer, party hereto of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of three thousand dollars, to him in hand paid by said party of the second part, the receipt of which is hereby acknowledged, hath bargained, sold, assigned, transferred and set over, and by these presents doth bargain, sell, assign, transfer and set over, unto the said party of the second part, the following described articles of furniture, being the identical articles for the purpose of securing the purchase money of which they are herein mortgaged [here insert schedule, or refer to schedule attached]; the said goods and chattels above mentioned and described being now in the hotel kept by said party of the first part, in said town of Angel's Camp, to have and to hold all and singular the said goods and chattels above bargained and sold, or intended so to be, unto the said party of the second part, his executors, administrators and assigns, forever. Provided, nevertheless, and this present indenture is upon this express condition, that if John Doe, the said party of the first part, his executors, administrators or assigns, shall well and truly pay unto the said party of the second part, his executors, adıninistrators or assigns, the sum of three thousand dollars, on the thirtieth day of July, at the Banking IIouse of Thos. S. Fiske and Co., in the city and county of Sacramento, in this state, and shall further pay unto the said party of the second part, his executors, administrators or assigns, interest upon the said principal sum at and after this date, at the rate of two per cent. per month, on the thirtieth day of each month, at said Banking House of Thomas S. Fiske and Co., in the said city and county, until the said principal sum be fully paid and discharged, then these presents shall be void. But in case default shall be made in the payment of the said principal sum above mentioned, or any one of said instalments of interest, then it shall and may be lawful for, and he the said party of the first part doth liereby authorize and empower the said party of the second part, his executors, administrators or assigns, with the aid and assistance of any person or persons, lawfully to enter his dwelling-house, hotel, store and other premises, and such other place or places as the said goods or chattels are or may be placed, and take and carry away the said goods and chattels, and sell and dispose of the same for the best price they can obtain by due process of law, or by agreement between the parties to this mortgage, their execntors, administrators or assigns, which agreement shall be entered on the record of this mortgage; and out of the money arising therefrom, to retain and pay the said sum above mentioned, with interest ae aforesaid, and all charges touching the same, and counsel-fees, not to exceed five per cent, upon the full amount which shall then be due, rendering the overplus, if any, unto the said party of the first part, or to his executors, administrators, or assigns. And until default be made in the payment of the said sum of money, said party of the first part may remain and con
* Statntes 0. p. 528.