CHAP. 95.

MORTGAGES.

Simmons v. Jenkins, 76 Ill. 482; Morris v. Tillson, 81 Ill. 607; McConnell v. Scott, 67 Ill. 274; Kavsing v. Hughes, 64 Ill. 124; Bell v. Prewitt, 62 Ill. 366; Kranert v. Simon, 65 Ill. 346; Strohm v. Hayes, 70 Ill. 41; Larmon v. Carpenter, 70 Ill. 549; Arnold Ill. 294: v. Stock, 81 III. 407; Rogers v. Meyers, 68 Ill. 92; Lewis v. D'Arcy, 71 Ill. 649; Durfee v. Grinnell, 69 Ill. 371; Wilson v. Rountree, 72 Ill. 570; Furlong v. Cox, 77 Davenport v. Ledger, 80 Ill. 574: Pike v. Colvin, 67 Ill. 231; Dieter v. Smith, 70 Ili. 168; Atkins v. Byrnes, 71 Ill. 326; Hungate v. Reynolds, 72 Ill. 425; Massey v. Hardin, 8 Ill. 330; Sickel v. Scott, 66 Ill 109; Young v. Bradley, 68 Ill. 553; Murch v. Wright, 46 Ill. 487 Beach v. Derby, 19 Ill. 617; Hutton v. Arnett, 51 Ill. 199: Mattingly v. Darwin, 23 Ill. 618; Gregg v. Sanford, 24 Ill. 17; Titus v. Mabee, 25 Ill. 260; Waite v. Dennison, 5r Ill. 319; Nelson v. Wheelock, 46 Ill. 25; Hunt v. Bullock, 23 Ill. 320; Richardson v. Lester, 83 Ill. 55: Bradley v. Parks, 83 Ill. 169; McDowell v. Stewart, 83 Ill. 538: Bushnell v. Wood, 85 Ill. 88; Jefferson v. Barkto, 1 Brad 568; Thompson v. Scott, 1 Brad. 641; Waters v. Cox, 2 Brad. 129; Bodley v. Anderson, 2 Brad. 450; Wilhelm v. Schmidt, 84 Ill. 183; Ticknor v. McClelland, 84 Ill. 471.

Acknowledgment-form.

2. Such instrument shall be 2. acknowledged before a justice of the peace of the town or precinct where the mortgagor resides; or, if there be no acting justice of the peace in the town or precinct where the mortgagor resides, then such instrument may be acknowledged before the county judge of the county in which the mortgagor resides; or, if the mortgagor is not a resident of this State at the time of making the acknowledgment, then before any officer authorized by law to take acknowledgment of deeds. The certificate of acknowledgment may be in the following form:

This (name of instrument) was acknowledged before me by (name of grantor) (when the acknowledgment is made by a resident insert the words "and entered by me")

this

day of

13

Witness my hand and seal.

(Name of officer.)

[SEAL.]

[As amended by act approved May 30, 1881. In force July 1, 1881. L. 1881, p. 113. R. S. 1845, p. 91, § 2; Harvey v. Dunn, 89 Ill. 585; Badger v. Batavia Paper Mig. Co., 70 Ill. 356; Chipron v. Feikert, 68 Ill. 284; Durfee v. Grinnell, 69 Ill. 371; Funk v. Staats, 24 Ill. 634; Henderson v. Morgan, 26 Ill. 431; Stephenson v. Browning, 48 Ill. 78; Herkelrath v. Stookey, 58 Ill. 21: Hammers v. Dole, 61 Ill. 307; Schroder v. Keller, 84 Ill 46; McDowell v. Stewart, 83 Ill. 538; Ticknor v. McClellan, 84 Ill. 471; Gaas et al. v. Hurd, 92 Ill. 316; Hervey v. R. I. Locomotive Works, 3 Otto (U. S.), 672.

3. Acknowledgment docketed. § 3. If the acknowledgment is by a resident of this State, the justice of the peace, or county judge, shall enter in his docket a memorandum thereof, substantially as follows:

day of ,18 A. B. (name of mortgagor), to C. D. (name of mortgagee), mortgage of (here insert description of the property as in the mortgage). Acknowledged this

[As amended by act approved May 30, 1881. In force July 1, 1881. L. 1881, p. 113. Barlow v. Birger, 30 Ill. 425; Durfee v. Grinnell, 69 Ill. 371; Badger v. Batavia Paper Mfg. Co., 70 Ill. 302; Chipron v. Feikert, 63 Ill. 284; Funk v. Staats, 24 Ill. 633; Koplin v. Anderson, 88 Ill. 120; Sage v. Browning, 51 Ili. 217; Schroder v. Keller, 84 Ill. 46; Harvey v. Dunn, 89 Ill. 585.

4. Record- effect of. § 4. Such mortgage, trust deed or other conveyance of personal property acknowledged as provided in this act, shall be admit[[*712] ted to record by the recorder of the county in which the mortgagor shall reside at the time when the instrument is executed and recorded; or, in case the mortgagor is not a resident of this State, then in the county where the property is situated and kept; and shall thereupon, if bona fide, be good and valid froth the time it is filed for record until the maturity of the entire debt or obligation: Provided, such time shall not exceed two years, unless within thirty days next preceding the maturity of the note or obligation for which such instrument or mortgage is given to secure the mortgagor and mortgagee, his or their agent or attorney shall file for record an affidavit, setting forth particularly the interest which the mortgagee has, by virtue of such mortgage, in the property therein mentioned, and if such mortgage is for the payment of money, the amount remaining due and unpaid therein, and the time for which the said mortgage is extended, which said extension shall not exceed a further term of two years; upon which affidavit the clerk shall endorse the time when the same was filed, and the said mortgagee shall also, within the said pre edtag thirty days, file a certified copy of said affidavits with the justice of the peace before whom said mortgage was acknowledged, or his successor in ofüce. And thereupon the mortgage lien originally acquired shall

CHAP. 95.

be continued and extended for and during the term of such extension. [As amended by act approved June 16, 1887. In force July 1, 1887. L. 1887, p. 241.

[R. S. 1885, p. 92, § 3; Iglehart v. Gibson, 56 Ill. 87; Upton v. Craig, 57 Ill. 257: Lemen v. Robinson, 59 Ill. 115; Strauss v. Kranert, 56 Ill. 254; Bryant v. Simoneau, 51 Ill. 327; St. John v. Conger, 40 Ill. 535; Frank v. Miner, 50 Ill. 448; Waite v. Dennison, 51 Ill. 320; Mason v. Ainsworth, 58 Ill. 163; Bushnell v. Wood, 85 Ill. 88; Furlong v. Cox, 77 Ill. 293; Simmons v. Jenkins, 76 Ill. 497; Aldrich v. Goodell, 75 Ill. 452; Davenport v. Ledger, 80 Ill. 574 Wilson v. Rountree, 72 Ill. 570; Hungate v. Reynolds, 72 Ill. 425; Lewis v. D'Arcy, 71 Ill. 648; Atkins v. Byrnes, 71 Ill. 326; Badger v. Batavia Paper M. Co., 70 Ill. 302; Strohm v. Hayes, 70 Ill. 41; Dieter v. Smith, 70 Ill. 168; Durfee v. Grinnell, 69 Ill. 371; Bryant v. Vix, 83 Ill. 11; Sumner v. McKee, 89

Ill. 127.

5. Copies, evidence. § 5. A copy of any such mortgage or other instrument, acknowledged, filed and recorded as aforesaid, including any affidavits annexed thereto, in pursuance of this chapter, certified by the proper recorder, from the records thereof, and also any copies of such affidavits filed with the justice of the peace before whom such mortgage or other instrument was acknowledged, or his successor in office, in pursuance of this chapter, may be read in evidence in like cases and upon the same conditions as copies of deeds and conveyances of lands so certified. [As amended by act approved June 16, 1877. L. 1877, p. 242.

[See "Conveyances," ch. 30, $$ 35, 36: R. S. 1845, p. 92, § 4; L. 1869, p. 359, § 1; Nixon v. Cobleigh, 52 Ill. 387; Huls v. Kimball, 52 Ill. 391.

6. Sale without notice to purchaser. having so conveyed any personal property who shall, during the exist 6. Any person ence of the title or lien created by such instrument, sell the same or any part thereof to another person for a valuable consideration, without informing him of the existence of such conveyance, shall forfeit and pay to the purchaser twice the value of the property so sold, which sum may be recovered by such purchaser, in an action of debt, in any court of competent jurisdiction, or before a justice of the peace if within his jurisdiction.

[R. S. 1845, p. 92, § 6; McConnell v. Purvines, 84 Ill. 583; Davenport v. Ledger, 80 Ill. 574; Van Pelt v. Knight, 19 Ill. 535; Brandt v, Daniels, 45 Ill. 453; Brooks v. Record, 47 Ill. 30.

7. Sale, etc., without consent of mortgagee. $7. Any person having so conveyed any personal property who shall, during the existence of such title or lien, sell, transfer, conceal, take, drive or carry away, or in any manner dispose of such property or any part thereof, or cause or suffer the same to be done without the written consent of the holder of such incumbrance, shall be guilty of a misdemeanor, and on conviction may be fined in a sum not exceeding twice the value of the property so sold or disposed of, or confined in the county jail not exceeding one year, or both, at the discretion of the court.

[L. 1861, p. 174, § 1; McConnell v. Purvines, 84 Ill. 583.

RELEASE OF MORTGAGES OF REAL OR PERSONAL PROPERTY.

8. Release on margin of record. § 8. Every mortgagee of real or personal property, his assignee of record or other legal representative, having received full satisfaction and payment of all such sum or sums of money as are really due to him from the mortgagor, shall, at the

CHAP. 95.

request of the mortgagor, his heirs, legal representatives or assigns. enter satisfaction upon the margin of the record of such mortgage in the recorder's office, which shall forever thereafter discharge and release the same, and shall bar all actions or suits brought or to be brought thereupon. All releases of mortgages and deeds of trust which have heretofore been made in accordance with the provisions of this section shall be held legal and valid and have the same force and effect as if made under the provisions of this act.

[R. S 1845, P. 110, § 37; Reece v. Allen,, Gilm. 235; Western R. R. Co. v. Nolan, 48 N. Y. 513; Wallard v. Worthman, 84 III. 446.

$9. A mortgage or trust deed of real or 9. Release by deed. personal property may be released by an instrument in writing executed by the mortgagee, trustee or his executor, administrator, heirs or assignee of record, and such instrument may be acknowledged or proved in the same manner as deeds for the conveyance of land.

[R. S. 1845, p. 110. § 37; Hale v. Morgan, 68 Ill. 244; Stanley v. Valentine, 7 Ill. 544; Kleeman v. Frisbie, 63 Ill. 482; Steinmetz v. Lang, 81 Ill. 603; McNab v. Young, Si ill. 11; Ryan v. Dunlap, 17 Ill. 43: Edgington v. Heffner, 81 Ill. 341; Bush v. Sherman, 80 Ill. 160; De Wolt v. Haydn, 24 III. 525.

10. Failure to release - penalty. § 10. If any mortgagee or trustee, in a deed in the nature of a mortgage, of real or personal property, or his executor or administrator, heirs or assigns, knowing the same to be paid, shall not, within one month after the payment of the debt secured by such mortgage or trust deed, and request and tender of his reasonable charges, release the same, he shall, for every such offense, forfeit and pay to the party aggrieved the sum of $50, to be recovered in an action of debt before a justice of the peace. [R. S. 1845, p. 110, $38.

MORTGAGE SALE OF REAL OR PERSONAL PROPERTY BY [713] SHERIFF.

11. Sale by sheriff. 11. It shall be lawful for the mortgagor of real estate or personal property to insert in his mortgage a clause authorizing the sheriff of the county in which the property, or some part thereof, is situated, to execute the power of sale therein granted to the mortgagee or his assigns or legal representatives, in which case the sheriff, at the time of such sale, of such county may advertise and sell the mortgaged premises pursuant to such power, and may execute all proper conveyances of the property so sold, in the name of and as the attorney in fact of the mortgagor, and at any sale made as aforesaid, the mortgagee, his assigns or legal representatives, may fairly and in good faith purchase the property, or any part thereof.

[Cottingham v. Springer. 83 Ill. : Warnecke v. Lembca, 71 ill. 91: Bush v. Sherman, 80 111. 160; Dempster v. West, 69 Ill. 613; Cushman v. Stone, 69 Ill. 516; McFarland v. Dey, 69 Ill. 419; Porter v McNabney, 77 Ill. 235; Koester v. Burke, 81 Ill. 436; Farrar v. Payne, 73 Ill. 86; Hughes v. Washington, 72 Ill. 84: Munn v. Burges. 70 Ill. 694; Harper v. Ely, 70 Ill. 581; Hall v. Gould, 79 Ill. 16; Herrington v. McCollum, 73 Ill. 476 Huggins v. Rider, 77 Ill. 360; McConnell v. People, 84 IIL 583; Martin v. People, 87 Ill. 526.

MORTGAGE OF REAL ESTATE.

CHAP. 95.

12. Constructive mortgage. § 12. Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.

[R S. 1845, p. 105, § 12; Hanford v. Blessing, 80 Ill. 188; Smith v. Cremer, 71 Ill. 185; Low v. Graff, 80 ill. 360; Heald v. Wright, 75 Ill. 17; Klock v. Walter, 70 Ill. 416 Carpenter v. Carpenter, 70 Ill. 457; Chadwick v. Clapp, 69 Ill. 119; Sharp v. Smitherman, 85 Ill. 153; Price v. Karnes, 59 Ill. 276; Delahay v. McConnel, 4 Scam. 158: Purviance v. Holt, 3 Gilm. 405; Jennings v. McConnel, 17 Ill. 148; Tillson v. Moulton, 23 111. 656; Shaver v. Woodward, 28 Ill. 279; Roberts v. Richards, 36 III. 339 Preschbaker v. Feaman, 32 Ill. 475: Walsh v. Brennan, 52 Ill. 193; Pensoneau v. Pulliam, 47 Ill. 58; Carr v. Kising, 62 Ill. 14; Fitzhugh v. Smith, 62 III. 486; Hanford v. Blessing, 60 III. 352; Hanford v. Blessing, 80 Ill. 188; Lindauer v. Cummings. 57 Il 195; Iglehart v v. Wiltberger, 56 Ill. 386; Lock v. Fulford, 52 Iil. 166; Wright v. Troutman, 81 Ill. Crane, 42 Ill. 261; Briscoe v. Power, 47 H. 447; Tompkins 374: Alwood v. Mansfield, 59 Ill. 496; Ruckman v. Alwood, 71 Ill. 155; Wilson v. McDowell, 78 Ill. 514; Magnusson v. Johnson, 73 Ill. 156; Huebsch v. Scheel, 81 Ill. 281; Baldwin v. Sager, 70 Ill. 503; Darst v. Gale, 83 III. 136; Strong v. Shea, 83 111. 575 Westlake v. Horton, 85 Ill. 228; Knowles v. Knowles, 86 I. 1; Hancock v. Harper, 86 Ill. 445; Tennery v. Nicholson, 87 Ill. 464; Dorr y. Dudderar, 88 Ill. 107; Thompson v. Scott, 1 Brad. 641; Oldham v. Pfleger, 84 Ill. 102.

FORECLOSURE OF REAL ESTATE MORTGAGES.

13. Death of grantor or owner of equity of redemption. 13. In case of the death of the grantor in any mortgage or trust deed in the nature of a mortgage, such grantor being at the time of his decease the owner of the equity of redemption of the premises so granted, or in case of the death of any person owning the equity of redemption of any premises mortgaged or conveyed in trust as a security for money, no sale shall be made by virtue of any power of sale contained in such mortgage or trust deed, or given in relation thereto; but the same may be foreclosed in the same manner as mortgages not containing power of sale may now be foreclosed at law or in chancery.

[L. 1869, p. 410, § 1; Hosmer v. Carter, 68 Ill. 98; Hall v. Sheer, 76 Ill. 296; Terry V. Eureka College, 70 Ill. 236; Rains v. Mann, 68 Ill. 264; McCart v. Frisby, 81 III. 188; Robins v. Swain, 63 III. 198; Hards v. Burton, 79 11. 504; Brown v. Cozard, 68 Ill. 178; Niles v. Harmon, 80 Ill. 396; M. V. & W. Ry. Co. v. U. S Exp. Co., 8r lll. 534 Logan v. Williams 76 Ill. 176; Dowden v. Wilson, 71 Ill. 485; Kelgour v. Wood, 64 Ill. 348; Hoag v. Starr, 69 Ill. 362; Freeman v. Freeman, 66 Ill. 54; Myers v. Manny, 63 Ill. 211; Oldham v. Pfleger, 84 Ill. 102.

14. Notice of sales under power-costs. § 14. In all sales of real estate under a mortgage, or trust deed in the nature of a mortgage, executed after the taking effect of this act, which may be made pursuant to a power of sale, at least thirty days' previous notice of such intended sale shall be given, whether so specified in the power of sale or not. It shall be sufficient to insert in such notice the date of the instrument, names of the grantor and grantee, and of the assigns if any, the amount of indebtedness the instrument was given to secure, the amount claimed to be due, a description of the premises to be sold, and the time, place and terms of the sale; and no sale shall be made except in the county in which the premises are situated. publication once in each week, for four successive weeks, in some newsThe notice shall be given by

paper or other paper authorized by law to publish legal notices, published in the county or counties where the premises are situated, or if no paper is published in such county, the nearest newspaper published in this State; but in no case shall a notice be given for a shorter time than is required by the mortgage or deed of trust. And in no case shall the mortgagee, trustee, or person making the sale, be entitled to charge as costs of advertisement more than the actual costs necessarily expended in giving notice as herein required.

[Bush v. Sherman, 80 l. 160; Hall v. Gould, 79 Ill. 16; Gunnell v. Cockerill, 79 Ill.79; Wilson v. McDowell, 78 Ill. 514; Cushman v. Stone, 69 Ill. 516; Dempster v West, 69 lil. 613; Harts v. Brown, 77 Ill. 226; Tooke v. Newman, 75 Ill. 215; Marsh v. Morton, 75 Ill. 621; Gregory v. Clarke, 75 Ill. 485; Harper v. Ely, 70 Ill. 581; Terry v. Trustees of Eureka College, 70 Ill. 236; Munn v. Burges, 70 III. 604; C., R. I. & P. R. R. Co. v. Kennedy, 70 Ill. 350; Wilson v. S. P. Commissioners, 70 lll. 46; Fairman v. Peck, 87 Ill. 156; P. L. & T. Co. v. Munson, 60 Ill. 371; Rice v. Brown, 77 Ill. 550; Koester v. Burke, 81 Ill. 436; Waller v. Arnold, 71 Ill. 350; Wylder v. Crane, 53 Ill. 490; Longwith v. Butler, 3 Gilm. 32; Bloom v. Van Rensselaer, 15 Ill. 502; Pardee v. Lindley, 31 11. 174; Hurd v. Chase, 32 Ill. 45; Weld v. Rees, 48 I. 428; Mapps v. Sharp, 32 Ill. 13; Hall v. Towne, 45 Ill. 493; Ross v. Demoss, 45 Ill. 448; Thornton v. Boyden, 31 Ill. 200; Griffin v. M. Co. 52 Ill. 140; Waite v. Dennison, 51 Ill. 319; Kilgour v. Gockley, 83 I 109; Dayis v. Conn. M. L. Ins. Co., 84 Ill. 508; St. Joseph Mfg. Co. v. Daggett, 84 Ill. 556; Ballinger v. Bourland, 87 Ill. 513; Gytes v. Franklin Savings Bank, 85 Ill. 256: Watson v. Sherman, 84 Ill. 264; Gunnell v. Cockerill, 84 Ill. 319; Chandler v. White, 84 Ill. 435.

15. Recitals. 15. A recital in a deed made in pursuance of a power contained in a mortgage or deed of trust, that due notice of the sale had been given, shall be prima facie evidence of the giving of such notice.

[Bowen v. Bond, 80 Ill. 351; Farrar v. Payne, 73 Ill. 82; Reece v. Allen, 5 Gilm. 240; Pardee v. Lindley, 31 Ill. 186; Graham v. Anderson, 42 Ill. 515; Weld v. Rees, 48 Ill. 437; Strother v. Law, 54 Ill. 413; Burr v. Borden, 61 Ill. 389.

16. Decrees for balance — execution. § 16. In all decrees hereafter to be made in suits in equity directing foreclosure of mortgages, a decree may be rendered for any balance of money that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of such balance, the same as when the decree is solely for the payment of money. And such decree may be rendered conditionally, at the time of decreeing the [*714] foreclosure, or it may be rendered after the sale and the ascertainment of the balance due: Provided, that such execution shall issue only in cases where personal service shall have been had upon the defendant or defendants personally liable for the mortgage debt, unless their appearance shall be entered in such suits.

[See "Chancery," ch. 22. § 44; L. 1865, p. 36, § 1; Hoag v. Starr, 69 Ill. 369; Mulvey v. Carpenter, 78 III. 581.

FORECLOSURE OF MORTGAGE BY SCIRE FACIAS.

17. Proceedings. § 17. If default be made in the payment of any sum of money secured by mortgage on lands and tenements, duly executed and recorded, and if the payment be by installments, and the last shall have become due, it shall be lawful for the mortgagee, his