'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 compiler 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. concerning Mortgages to I. Be it enacted by the People of the State of New- 1. An act York, 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 gaged, the times when such mortgages are registered, and a minute of the certificate of the proof or acknowledgment 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 veral 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 mortgages. mortgages of the same premises, or any part therein Error, 112] of, the mortgage or mortgages, which shall be first re there are se. ges, the first have prefer. ence. [The doctrine mortgages not registered 1 Caines' Cases gistered 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. deeds in terms, defeasance, tered as mort gages-or no a derived from benefit to be such deeds as mortgages. 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 regisa security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as mortgage, and be deemed and adjudged to be liable to 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. 4. Dischar ges of mor ga ed in the regis ges-being first IV. And be it further enacted, That whenever any 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, administrators July 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 acknowledg ment thereof. 5. No sale V. And be it further enacted, That no sale of any gage to be de- lands, tenements or hereditaments, made or to be made under a mot feated. 6. All sales under mortga public vendue, sell being first recorded. in due form of law by any mortgagee or others thereunto authorized by special power for that purpose, from any person entitled to the equity of redemption therein, shall be defeated to the prejudice of any bona fide purchaser thereof, in favor or for the benefit of any person claiming such redemption in equity: Provided, That nothing herein contained shall be construed to prejudice any other mortgagee of the same premises or any part thereof, whose title accrued prior to such sale, or any creditor to whom the mortgaged premises or any part thereof, were before bound by any judg ment at law or decree in equity. And provided also, That nothing herein contained shall operate to secure any such purchaser under any power executed since the nineteenth day of March, in the year one thousand seven hundred and seventy-five, or hereafter to be executed for the purposes of such sale, unless the party executing the same be of the age of at least twentyfive years. VI. And be it further enacted, That all such powers g to be at to mortgagees, made or to be made, authorizing sales the power to in fee, shall be acknowledged or proved and recorded, together with the certificate of such proof or acknowledgment, as deeds and conveyances usually are, before the conveyances for the sale be executed; and every such sale shall be at public auction or vendue, and public notice shall be given thereof by advertisements, one copy thereof to be inserted and continued at least once a week for six successive months previous to the sale,* in one of the newspapers published in the coun: The "six months" contained in the above section mean lunar months Where the common law hath defined and affixed a precise meaning to a particu |