ceptions and making the deposit are of no avail without that order.(d) That a purchaser may complete his purchase, or by the purchaser that he pay in his purchase money. 13. That a compiete chaser that he If a purchaser under a decree delays paying his pur- purchaser may chase money, a motion may be made for an order upon his purchase, him to complete his purchase, by paying the purchase or by the pur money with interest at per cent. from the time pay his pur he was reported the best purchaser,(a) and if he disobeys the order, he may be committed.(b) It has however been held, that if a purchaser submits to forfeit bis deposit, he is not bound to proceed in his purchase.(c) One purchaser of a lot, may on motion, be substituted for another, on the consent of the original purchaser, and all the parties in the cause.(d) If two persons make a joint purchase, one of the purchasers will not be allowed to move to pay into court one moiety of his purchase money.(e) A purchaser, under a decree of the court, at a master's sale, may be compelled to complete the purchase; and the court, where the conditions of the sale give no alternative to the purchaser, will exercise its discretion, under the circumstances of the case, in coercing the purchaser by an attachment.(/) (d) 2 Mad. ib. See Pearce v. Crutchfield, 16 Ves. jun. 49. (a) 2 Mad 383. Savile v. Savile, Child v. Lord Abingdon, 1 Ves. jun. 94. (b) 2 Mad. ib. Landown v. Elderten, 14 Ves. 512. (d) 2 Mad. ib. Matthews v, Stubbs, Bro. C. C. 391. (e) 2 Mad. ib. Darkin v. Marye, 1 Anst. 12. (f) 2 Johns. Chan. Rep. 505. The Executors of Brasher v. Cortlandt, a lu (c) 2 Mad. ib. Savile v. Savile, 1 P. natic, by his committee, &c. Wms. 745. chase money. MORTGAGES FORECLOSED UNDER THE STATUTE. Special Contents. I. An act concerning them. II. The description of them. III. What may be deemed such. IV. The nature of them. V. The estate and interest in them. VI. The registry of them. VII. The satisfaction of them. VIII. The power to sell them. IX. Forms for acknowledging and cancelling them. In the preceding part of this book, having treated on the subject of mortgages, under the titles of the equity of redemption, foreclosure, and a reference to a master to compute the principal and interest due on a mortgage, and to sell mortgaged premises, the com‐ piler has thought proper to introduce here the provisions of the statute of the 9th of March, 1813, in relation to mortgages, and in a particular manner prescribing the mode of foreclosing them, connected with the other heads which also relate to them, with various decisions thereon; which decisions, although taken from common law reports, still may not be unworthy the consideration of the student, from the near relation they bear a subject which occupies so much of the attention of this court. I. An act in relation to mortgages. Special Contents. I. Mortgages to be registered-power of sale. II. Where there are several mortgages the first registered to III. Absolute deeds in terms, yet subject to a defeasance shall be IV. Discharges of mortgages to be entered in the registry of mortgages-being first duly proved. V. No sale under a mortgage to be defeated. VI. All sales under mortgages to be at public vendue, the power to sell being first recorded. VII. Proof of notice of sale how made. VIII. Affidavit of notice of sale before whom to be made. IX. Affidavits of notice of sale may be recorded. X. Mortgagee may purchase. XI. Mortgages to the state may be registered in the secretary's office. XII. The secretary of state to procure books for the purpose. XIII. Treasurer's certificate of discharge of mortgages to the state, sufficient to be recorded. XIV. Mortgages to the state may be foreclosed. XV. Mortgage given to secure the purchase money of lands takes preference to a judgment. 1. An act concerning Mortgages to I. Be it enacted by the People of the State of NewYork, represented in Senate and Assembly, That the mortgages. clerks of the respective counties in this state, from be registered. time to time, shall provide fit and convenient books for the registering of all mortgages of any lands, tenements or hereditaments, situated within their respective counties; in which register shall be entered the names of the mortgagors and mortgagees, the dates of the respective mortgages, the mortgage money, the time or times when payable, the description and boundaries of the lands, tenements or hereditaments mort there are se ges, the first ledgment thereof hereinafter mentioned; to which register all persons whomsoever at proper seasons may have recourse. And it is hereby made the further duty of the clerks of the respective counties in this state, when registering a mortgage, also to record at length the special power of sale, if any be contained therein, for which service the said clerks are hereby respectively allowed to demand and receive, over and above the fee allowed by law for registering a mortgage, the like rate of compensation which is allowed them for recording a deed; and that if any clerk shall neglect or refuse to do the duty required of him by this act, he shall answer to the party injured all damages which shall happen by reason of such neglect or refusal. 2. Where II. And be it further enacted, That every mortgage mortga- being proved or acknowledged according to law, and registered to such proof or acknowledgment certified in like manner, may be registered as aforesaid in the city or of tacking county in which the lands, tenements or hereditaments applicable to SO mortgaged are situated: and in case of several registered mortgages of the same premises, or any part therein Error, 112] of, the mortgage or mortgages, which shall be first registered as aforesaid, shall have preference in all courts of law and equity according to the times of the registry of such mortgages respectively: Provided, The mortgage or mortgages so to be preferred, be made bona fide and upon good and valuable consideration: And further, That no mortgage nor any deed, conveyance, or writing in the nature of a mortgage, shall defeat or prejudice the title or interest of any bona fide purchaser of any lands, tenements or hereditaments, unless the same shall have been duly registered as aforesaid. have prefer ence. [The doctrine mortgages not mortgages. 1 deeds in terms, defeasance, tered as mort benefit to be such deeds as III. And be it further enacted, That every deed 3. Absolute conveying a real estate, which by any other instrument yet subject to a or writing shall appear to have been intended only as shall be regis a security in the nature of a mortgage, though it be an gages or no absolute conveyance in terms, shall be considered as a derived from mortgage, and be deemed and adjudged to be liable to mortgages. be registered as other mortgages are by virtue of this act; and that the person or persons for whose benefit such deed shall be made, shall not have the advantages given by this act to mortgages, unless every instrument and writing operating as a defeasance of the same, or explanatory of its being designed to have the effect only of a mortgage or conditional deed, be also therewith registered in substance as in case of a mortgage. of moriga. ed in the regis IV. And be it further enacted, That whenever any 4. Dischar mortgage so registered, shall be redeemed or discharg-ges to be enter ed, and a certificate thereof signed by the mortgagee try of mortga or mortgagees, his or their executors, administrator being first duly proved. or assigns, in the presence of two or more witnesses, and proved or acknowledged in the same manner as the execution of such mortgage is above directed to be proved or acknowledged, and such proof or acknowledgment also certified in like manner, be produced to the clerk of the city or county in which the same is registered, such clerk shall enter in the said book or register of mortgages, a minute of such discharge and certificate, which minute shall be deemed and taken to be a full and absolute bar to the first entry of such mortgage or mortgages, and it shall not be necessary for the said clerk on entering such minute, or on registering any mortgage as aforesaid, to record or register at length the certificate of the proof or acknowledgment thereof. |