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3 Gardner v. London etc. Railw. Co. Law R. 2 ch. 201.

4 Union etc. Co. v. Murphy etc. Co. 22 Cal. 620; and see New Orleans Nat. Bank v. Raymond, 23 La. An. ¿55.

5 Benjamin v. Elmira etc. R. R. Co. 49 Barb. 441; and see Henshaw v. Bank etc. 10 Gray, 568; Phillips v. Winslow, 18 B. Mon. 431; Howe v. Freeman, 14 Gray, 506; Willink v. Baning Co. 3 Green Ch. 377; Phila. etc. R. R. Co. v. Woelper, CA Fa. St. 366; 3 Am. R. 596. Compare Farmers' etc. Trust Co. v. Commercial Bank, 15 Wis. 424; City of Bath v. Miller, 53 Me. 303; Brainerd v. Peck, 34 Vt. 496; Stevens v. Buffalo etc. R. R. Co. 45 How. Pr. 104.

6 Bank of South Australia v. Abrahams, Law R. 6 P. C. 265; Re Brit Ish etc. Fire Assoc. Co. 4 DeGex J. & S. 407; Re Sankey Brook Coal Co. Law R. 10 Eq. 381.

7 Re Sankey Brook Coal Co. Law R. 10 Eq. 381.

8 Scott v. Railroad Co. 6 Biss. 534; United States v. New Orleans R. R. Co. 12 Wall. 362.

9 Williamson v. Railroad Co. 29 N. J. Eq. 311.

10 Pierce v. Milwaukee etc. R. R. Co. 24 Wis. 551; and see Short v. Battle, 52 Ala. 436.

11 Pullan v. Cin. etc. R. R. Co. 5 Biss. 237; Gilman r. Ill. etc. Tel. Co. 91 U. S. 603; Miss. etc. Railw. Co. v. U. S. Express Co. 81 Ill. 534; City Bank v. Tallman, 31 Barb. 201.

12 Pullan v. Cin. etc. R. R. Co. 5 Biss. 237.

13 Pullan v. Cin. etc. R. R. Co. 5 Diss. 237.

14 Conard v. Atlantic Ins. Co. 1 Peters, 336; Crewer etc. Min. Co. v. Williams, 14 Week R. 441; 14 L. T. N. S. 93; and see Alex. Sav. Inst. v. Thomas, 239 Gratt. 483.

15 Wright v. Bundy, 11 Ind. 398.

§ 131. Form, execution, etc., of mortgage. — A trust deed to secure the payment of a debt, and containing a power of sale, is but a mortgage; and it is usual in the United States to call the instrument "a deed of trust or mortgage," and its form may be that of either.2 Where the instrument describes the property at first in general terms, and afterward describes particularly each thing mortgaged, the latter will control the former if there ba repugnancy. In the execution of a mortgage by a corporation, statutory requirements must be complied with, and the mortgage must be executed in conformity with the by-laws of the company, if any exist upon the subject. A chattel mortgage executed on behalf of a company by its president, and sealed with his individual seal, may be treated as the simple contract of the company, if a seal is not requisite to the validity of the mortgage;" otherwise, if the corporate seal be necessary to its valid.

ity. A mortgage executed and acknowledged by the directors of a company who were present, the corporation seal being duly affixed, was held to be good. There must be a delivery of the mortgage, and an acceptance by the mortgagee. And the fact that a mortgage was acknowledged or proved does not raise a conclusive presumption that it had been delivered.10

1 Lawrence v. Farmers' Loan etc. Co. 13 N. Y. 200, 642; Bennet v. Union Bank, 5 Humph. 612. See Wilmer v. Atlanta etc. Railw. Co. 2 Woods, 447.

2 Coe v. McBrown, 22 Ind. 252; Canal Co. v. Vallette, 21 How 414; Pullan r. Cin. etc. R. R. Co. 4 Biss. 35.

3 Pullan v. Cin. etc. R. R. Co. 4 Biss. 35.

4 Amerman v. Wiles, 24 N. J. Eq. 13; Hunt v. Bullock, 23 Ill. 320; and see Re Patent File Co. Law R. 6 Ch. 83.

5 Gordov. Preston, 1 Watts, 385.

6 Sherman v. Fitch, 98 Mass. 59.

7 Sherman v. Fitch, 98 Mass. 59; Richardson v. Scott River etc. Co. 22 Cal. 150.

8 Gordon v. Preston, 1 Watts, 385.

9 See Kingsbury v. Burn ide, 58 Ill. 310; 11 Am. R. 67; Hawkes v. Pike, 105 Mass. 560; 7 Am. R. 554; Freeman v. Peay, 23 Ark. 439. 10 Bell v. Farmers' Bank, 11 Bush, 34; 21 Am. R. 205.

§ 182. Power of a corporation to take a mortgage. A banking company empowered by its charter to hold land mortgaged to it by way of security, may take a deed of land in trust to secure just debts due the company; and if the deed also secures other debts which are void, the trust will fail as to them, but will be a valid security for the valid debts.2 Under a general authority to take tolls, a bridge company may appoint a toll collector, and take his mortgage as security for the payment of all toll-money collected by him. If a corporation purchases property without authority, and sells the same, and takes a mortgage on it as security, it cannot refuse to apply payments made on the mortgage by reason of its want of authority. A bank, unless restrained by its charter, may take a mortgage to secure anticipated liabilities, as well as those existing at the time.5 But under the provisions of the National Banking Act, a national bank

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cannot take a mortgage or deed of trust on real estate as security for a contemporaneous loan, or for future advances; but it may take real-estate security for a previous loan, if done in good faith. And a mortgage taken by a national bank, partly to secure pre-existing debts, and partly to secure a future loan, will be void as to the latter, but valid as to the former. 10 A subscription for shares of stock in a manufacturing company is a good consideration for a bond and mortgage to secure the amount subscribed; 11 and the neglect or refusal of a company to issue to the mortgagor script for the shares at his request, will not amount to a failure of the consideration.12

1 Bennett v. Union Bank, 5 Humph. 612.

2 Morris v. Way, 16 Ohio, 469.

3 Peru Bridge Co. v. Hendricks, 18 Ind. 11; and see Bank of Brigh ton v. Smith, 5 Allen, 413; Mayor etc. v. Harrison, 30 N. J. L. 73.

4 Parish v. Wheeler, 22 N. Y. 494.

5 Bank of United States v. Dandridge, 12 Wheat. 64; Crocker v. Whitney, 71 N. Y. 161; and Silver Lake Bank v. North, 4 Johns. Ch. 370; Farmers' etc. Trust Co. v. McKinney, 6 McLean, 1.

6 U. S. Rev. Stat. §§ 5136-7.

7 Matthews v. Skinker, 62 Mo. 329; Kansas Valley Nat. Bank . Rowell, 2 Dill. 371.

8 Crocker v. Whitney, 71 N. Y. 161; Thomp. Nat. Bank Case, 745; Kansas Valley Nat. Bank v. Rowell, 2 Dill. 371.

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9 Fowler v. Scully, 72 Pa. St. 456; Merchants' Nat. Bank v. Mears, Thomp. Nat. Bank Case, 353.

10 Woods v. People's Nat. Bank, 83 Pa. St. 57. 11 Battershall v. Davis, 31 Barb. 323.

12 Battershall v. Davis, 31 Barb. 323.

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§ 183. Priority of liens.—As between two independ ent mortgages, the one first recorded is generally the prior lien. If several notes are secured by the same mortgage, they are to be paid from the mortgage fund in the order in which they mature.2 The priority of the respective liens of mortgagees, mechanics, material-men, etc., principally depends upon the language and construction of the provisions of the statutes on the subject in the different states, and the statute of the particular state should be consulted. Under the English Companies' Act, a register of all mortgages and charges is required to

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be kept; and unregistered debentures in the hands of the solicitors or directors of the company are held to be invalid; but otherwise, as to similar debentures or charges in the hands of the company's bankers, or of ordinary persons.

1 Peychaud r. Citizens' Bank, 21 La. An. 262; Odd Fellows' Sav. Bank v. Bouton, 46 Cal. 603. Conipare Brunswick etc. R. R. Co. v. Hughes, 52 Ga. 557; Campbell r. Texas, 2 Wood, 263.

2 Marine Bank v. International Bank, 9 Wis. 57; Bank of U. S. v. Covert, 13 Ohio, 240.

3 Sec Getchell r. Allen, 34 Iowa, 559; Denniston v. Chicago etc. R. R. Co. 4 Biss. 414; Hazard Powder Co. v. Loomis, 2 Dish. 544; Davis v. Bilsland, 18 Wall. 65; Helfrich v. Weaver, 61 Pa. St. 385.

4 See Reg. v. Wilts etc. Canal Co. 3 Ad. & E. 477; Birmingham etc. Railw. Co. v. White, 1 Q. B. 252.

5 Re Wynn Hall Coal Co. Law R. 10 Eq. 515; Ex parte Valpy, Law R. 7 Ch. 289; Ro Native Iron Ore Co. 2 Ch. Div. 345. Compare Re International Pulp etc. Co. Law R. 6 Ch. Div. 556.

6 Re General Prov. Assu. Co. Law R. 14 Eq. 507.

7 Re General South American Co. 2 Ch. Div. 337; Green's Brice's Ultra Vires, (2nd Am. ed.) 246.

§ 184. Enforcement of mortgage.-One remedy of a mortgagee is by foreclosure, two methods of which are provided by law, independent of statute-namely, strict foreclosure, and foreclosure by a sale of the property to the highest bidder, under the direction of an officer of the court. The effect of the former is to extinguish the right of redemption, and to transfer the absolute title without sale, irrespective of the value of the premises; 2 and the effect of the latter method is the same as that of the former to extinguish the equity of redemption, and to leave the title conveyed by the mortgage absolute. In many of the states there are statutes which regulate the remedy, and their provisions must be strictly pursued.4 Concurrent proceedings at law and in equity are allowed in some of the states; and the right to foreclose by bill in equity was held not to be affected by a provision in a railway mortgage authorizing the trustee to take posses sion of the road, operate it, receive its income, and, upon due notice, to sell it, on default of the company to pay interest.6

1 See Slee v. Manhattan Co. 1 Paige, 48, 70; Wilson v. Troup, 2 Cow. en, 195; Lansing v. Albany Ins. Co. Hopk. Ch. 102; Johnson v. Donnell, 15 Ill. 97; Elliott v. Wood, 45 N. Y. 71; 53 Barb. 285.

2 Bradley v. Chester Valley R. R. Co. 36 Pa. St. 141; Packer v. Rochester etc. R. R. Co. 17 N. Y. 283, 287.

3 Packer v. Rochester etc. R. R. Co. 17 N. Y. 283, 287; Mendenhall . West Chester etc. R. R. Co. 36 Pa St. 146.

4 See Cohoes Co. v. Goss, 13 Barb. 137; Lawrence v. Farmers' etc. Trust Co. 13 N. Y. 200; Chase v. McClellan, 4) Me. 375.

5 See Equitable Life Ins. Soc. v. Stevens, 63 N. Y. 341: Armstrong . Ross, 20 N. J. Eq. 109; State v. Florida etc. R. R. Co. 15 Fla. 690.

6 Alexander v. Central R. R. 3 Dill. 487.

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