power of sale to himself. Two judges held that the lien. S 1617. A mortgage is a lien upon everything that on what a would pass by a grant of the property, and upon nothing more. For applications of this principle in respect to particular As to fixtures, King v. Wilcomb, 7 Barb., 263; Robinson As to crops, Shuart v. Taylor, 7 How. Pr., 251; Shepard As to growing timber, Ensign v. Colburn, 11 Paige, 503; As to rolling stock on railroads, Farmers' Loan and Trust S 1618. A mortgage is a lien upon the property mortgaged, in the hands of every one claiming under Against mortgage whom a is a lien. Mortgage of thing held adversely. Mortgage does not entitle mortgagee to possession. Foreclosure the mortgagor subsequently to its execution, except purchasers or incumbrancers in good faith, without notice and for value, and except as otherwise provided by article III of this chapter. The fact that one offering to assign a bond and mortgage is unable to produce the instruments themselves, is held, in Kellogg v. Smith, 26 N. Y., 18, to be enough to put the purchaser upon inquiry as to any defect in the assignor's title, and to affect him with notice of a prior assignment, notwithstanding that a false reason is given for the non-production (Compare Williams v. Walker, 2 Sandf. Ch., 325, and 3 N. Y. Leg. Obs., 204). S 1619. A mortgage of property held adversely to the mortgagor takes effect from the time at which he, or one claiming under him, obtains possession of the property; but has precedence over every lien upon the mortgagor's interest in the property, created subsequently to the recording of the mortgage. 1 R. S., 739, § 148. S1620. A mortgage does not entitle the mortgagee to the possession of the property,' but after the execution of the mortgage the mortgagor may agree to such change of possession upon a new consideration.2 1 This is in accordance with the present law, in regard to By the present law, no consideration is necessary to S1621. A mortgagee may foreclose the right of redemption of the mortgagor, in the manner prescribed by the CODE OF CIVIL PROCEDURE. The reference is to the Code as reported complete. S1622. No person whose interest is subject to the Waste. lien of a mortgage may do any 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, ARTICLE II. MORTGAGE OF REAL PROPERTY. SECTION 1623. Mortgage, how created. 1624. Mortgage not a personal obligation. 1625. Mortgages on lands inherited or devised, by whom to be paid. 1626. Mortgage, how recorded. 1627. Effect of record. 1628. What must be recorded as a mortgage. 1629. Recording assignment. 1630. Discharge of records, &c., of mortgage. 1631. Certificate, how to be recorded. how created § 1623. A mortgage of real property can be cre- Mortgage, ated, renewed or extended, only by writing, under seal, with the formalities required in the case of a grant of real property. Stoddard v. Hart, 23 N. Y., 556. This section does not recognize a mere depcsit of title Mortgage not a personal obligation. Mortgages on lands devised, by whom to be paid. to give a mortgage, or create a lien upon the deed, are left to the application of the general rules relative to the specific performance of contracts, and to liens. As to the present law in this state, upon this question, see Rockwell v. Hobby, 2 Sandf. Ch., 9; Stoddard v. Hart, 23 N. Y., 561; Mandeville v. Welsh, 5 Wheat., 277. In support of the views here expressed, see Ex parte Whitbread, 19 Ves., 209. S 1624. A mortgage of real property does not bind the mortgagor personally to perform the act for the performance of which it is a security, unless there is an express covenant therein to that effect. 1 R. S., 738, § 139; Hone v. Fisher, 2 Barb. Ch. R., 569. As to what amounts to such a covenant, see Elder v. Rouse, 15 Wend., 218. S1625. When real property, subject to a mortgage, inherited or passes by succession or will, the successor or devisee must satisfy the 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. Mortgage, how recorded. Effect of record. What must be recorded as a mortgage. 1 R. S., 749, § 4. S1626. Mortgages of real property may be recorded in like manner with grants thereof, except that they must be recorded in books kept for mortgages exclusively. See section 513. S1627. The record of a mortgage, duly made, operates as notice to all subsequent purchasers and incumbrancers. 1 R. S., 756, § 1; 761, § 33. The record does not operate as notice to a prior incumbrancer, even with respect to his future acts (Howard Ins. Co. v. Halsey, 8 N. Y., 271; Stuyvesant v. Hall, 2 Barb. Ch., 151; 1 Sandf. Ch., 419). S1628. Every grant of real property, or of any estate therein, which appears, by any other writing, to be intended as a mortgage within the meaning of chapter I of this Title, must be recorded as a mortgage; and if such grant and other writing explana tory of its true character are not recorded together, at the same time and place, the grantee can derive no benefit from such record. 1 R. S., 756, § 3. assign S 1629. An assignment of a mortgage may be re- Recording corded in like manner with a mortgage, but in a ment. separate book, and such record operates as notice to all persons subsequently deriving title to the mortgage from the assignor. of records, &c., of mortgage. S1630. A recorded mortgage must be discharged Discharge upon the record, by the officer having custody thereof, on the presentation to him of a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged, or proved and certified, as prescribed by the chapter on RECORDING TRANSFERS, stating that the mortgage has been paid, or otherwise satisfied and discharged. 1 R. S., 761, § 28. how to be S1631. A certificate of the discharge of a mort- Certificate, gage, and the proof or acknowledgment thereof, must recorded. be recorded at length; and a reference made in the record, to the book and page where the mortgage is recorded, and in the minute of the discharge made upon the record of the mortgage, to the book and page where the discharge is recorded. 1 R. S.,, 761, § 29; modified by requiring a reference to ARTICLE III. MORTGAGE OF PERSONAL PROPERTY. SECTION 1632. To be in writing. 1633. Foreclosure. 1634. Mortgage must be filed. 1635. Effect of filing. 1636. How filed. 1637. Mortgage valid only in respect to things as to which it is filed. |