« PreviousContinue »
secure the payment of a sum of money a court of equity will treat it as a mortgage; but if it is in fact what it purports to be then it will be treated as a sale and unless the right of repurchase is exercised within the designated time that right is lost forever. Tiffany, P. 1181.
169. Has a mortgagor an insurable interest?
A. He has, to the amount of the mortgage debt only. Tiffany, P. 1209.
171. What is meant by foreclosure?
A. Foreclosure is an equitable proceeding by which the land is sold and the proceeds applied to the payment of the obligation secured. Tiffany, Sec. 548.
172. Is parole evidence admissible to show that a deed absolute on its face is in fact a mortgage?
A. Such evidence is admissible only in a court of equity when the court has reason to believe that a fraud may have been perpetrated. Tiedeman, Sec. 233.
173. What may be mortgaged?
A. Any vested legal or equitable interest in land. Tiedeman, Sec. 238.
174. Who is entitled to the rents and profits arising from mortgaged premises ?
A. The party in possession is entitled to the rents and profits, be he mortgagor or mortgagee. Tiedeman, Sec. 245.
175. What liability is there upon the mortgagee for rents collected by him from the mortgaged property?
A. He receives such rents as the agent of the mortgagor, and after the payment of legitimate expenses he must apply them first to the payment of interest and then to the payment of the principal of the debt. Tiedeman, Sec. 246.
176. Can a mortgage be assigned ? A. Yes.
177. How is such assignment made ?
A. It is made by deed and may be either separate or by endorsement on back of the mortgage itself coupled with the delivery of the instrument of indebtedness if there be one. Tiedeman, Sec. 249.
178. How may a mortgage be extinguished ?
A. By any act which would amount to a payment of the debt or a release of the mortgage. Tiedeman, Sec. 256.
179. How is priority of mortgages determined ?
A. By the dates they are recorded. That which is recorded first has priority over mortgages subsequently recorded. Tiedeman, Sec. 259.
180. Of what effect is an unrecorded mortgage ?
A. It is good between the parties and all persons claiming under them, but a recorded mortgage has priority over it. Tiedeman, Sec. 260.
181. Who are the proper parties to a foreclosure proceeding?
A. All persons having a legal or equitable interest should join as parties plaintiff; those who refuse to join should be made parties defendant.
182. Can one not interested in the mortgage be a party to foreclosure proceedings?
A. Such person can never be a party. 183. What is a deed of trust?
A. It is an instrument similar in effect to a mortgage with power of sale, by which property is conveyed to a trustee to secure the creditor, with power to sell the property and satisfy the debt with the proceeds, if it is not paid at maturity. Tiedeman, Sec. 282.
184. What is a strict foreclosure?
A. It occurs where it is decreed by the court, on a bill filed to foreclose the rights of the mortgagor, that the mortgagee shall take the property for his debt. Tiffany, Sec. 550.
185. What is a general foreclosure?
A. Where is it decreed by the court, on a bill filed for foreclosure, that the security shall be sold and that out of the proceeds the mortgagee shall have his debt, interest and costs, and that if there be any surplus it shall be paid to the mortgagor.
186. Is strict foreclosure ever used in this country?
A. General foreclosure is the method in use in this country and it is doubtful if strict foreclosure was ever used.
187. Is a stipulation in a mortgage that upon foreclosure the amount of the attorney's fees in the foreclosure proceedings be included in the decree, valid ?
A. Yes, by the weight of authority such a stipulation is valid but the amount named as attorney's fees may be changed in the discretion of the court. Tiffany, Sec. 557
188. What is an equitable lien ?
A. It is “a right in equity to have a personal claim paid, in case of necessity, by the sale of specific land.” Tiffany, Sec. 559.
189. What is a mechanics' lien?
A. It is a statutory lien on land, fixtures and improvements thereon to secure the payment of persons who under contract with the owner or his agent furnished labor or materials in the improvement of the land. Tiffany, Sec. 559.
190. What is simony?
A. It is a corrupt presentation to an ecclesiastical benefice for money, gift or reward.
191. What is prescription?
A. A method of acquiring incorporeal hereditaments where a man can show no other title than that he, and those under whom he claims, have immemorially been used to enjoy it.
192. What is the distinction between custom and prescription ?
A. Custom is properly a local usage and not annexed to the person; prescription is purely a personal usage.
193. For what things may a prescription be raised?
A. Only for incorporeal hereditaments, such as right of way, a common, etc.; and it can only be laid in the tenant of the fee and it cannot be laid except for the thing that can be raised by grant.
194. What is the presumption of law on a prescription?
A. That at some time or other, so long passed that the grant has been lost, the person who claims did have a grant.
195. What is title by accretion? A. It is the title which the owner of land on a body