Изображения страниц

NOTE.-Subd. 1.-Averill vs. Taylor, 8 N. Y., p. 44; Pardee vs. Van Auken, 3 Barb., p. 535; Burnet vs. Denniston, 5 Johns. Ch., p. 35; see Brainard vs. Cooper, 10 N. Y., p. 356; Van Buren vs. Olmstead, 5 Paige, p. 9; Benedict vs. Gilman, 4 id., p. 58; McKinstry vs. Mervin, 3 Johns. Ch., p. 466; Smith vs. Green, 1 Collyer, p. 555; Fell vs. Brown, 2 Bro. C. C., p. 278.

Subd. 2.- Averill vs. Taylor, 8 N. Y., p. 44; see Robinson vs. Ryan, 25 N. Y., p. 320. Such subrogation is not allowed when unnecessary to the junior incumbrancer, especially if prejudicial to other parties.-Jenkins vs. Continental Ins. Co., 12 How. Pr., p. 66. But when necessary, it is allowed. Thus, & mortgagee may redeem from an assessment (Rapelye vs. Prince, 4 Hill, p. 119; Brevoort vs. Randolph, 7 How. Pr., p. 398), or from a tax sale (Burr vs. Veeder, 3 Wend., p. 412; Kortright vs. Cady, 23 Barb., p. 490; 5 Abb. Pr., p. 358), or sale under execution (Silver Lake Bank vs. North, 4 Johns. Ch., p. 370), and add the amount so paid to his lien.-Robinson vs. Ryan, 25 N. Y., p. 320.

Rodomption from lien, how made.

2905. Redemption from a lien is made by performing, or offering to perform, the act for the performance of which it is a security, and paying, or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay.

NOTE.-Kortright vs. Cady, 21 N. Y., P. 343.



SECTION 2909. Lien deemed accessory to the act whose performance

it secures.
2910. Extinction by sale or conversion.
2911. Lien extinguished by lapse of time under Statute of

2912. Apportionment of lien.
2913. When restoration extinguishes lien.

Lion deemed accessory to the act whose performance it secures.

2909. A lien is to be deemed accessory to the act for the performance of which it is a security, whether any person is bound for such performance or not, and is extinguishable in like manner with any other accessory obligation.


NOTE.-A mortgage may be made to secure payment of a sum of money which no person assumes to pay. In such case an offer to pay the amount would of course extinguish the lien, and yet, strictly speaking, there is no principal obligation, since no one is bound. This section is designed to make the rules concerning accessory contracts applicable to all such liens. A tender of the money due upon a mortgage at any time before foreclosure discharges the lien, although not made till after the day named in the bond for payment. It is not necessary, in order to sustain such tender, to show a continued readiness to pay, nor to bring the money into Court. That is not requisite where the tender is relied upon, not to discharge the debt, but only to defeat a particular remedy.-Kortright vs. Cady, 21 N. Y., p. 343, reversing S. C., 23 Barb., p. 490; 5 Ab. Pr., p. 424; 12 How. Pr., p. 424. It is true that in this State it has been held (Perre vs. Castro, 14 Cal., p. 519) that a tender after the law day of the mortgage did not discharge the lien. The distinction taken between a tender before and a tender after the law day cannot be maintained on principle, and the case of Perre vs. Castro has not been approved by the later decisions. In Ketchum vs. Crippen, 37 Cal., p. 226, it was claimed that the tender, not only after what was formerly called the law day of mortgages, but after the lien of the mortgage had become merged in the judgment, yet before an actual sale under the judgment, discharged the lien, and that it was unnecessary for the plaintiffs, being holders of the second mortgages, to keep the tender good, or to ever after pay the judgment; that the tender was itself an absolute discharge of the lien. This claim was based upon the cases of Kortright vs. Cady, 21 N. Y., p. 344, and Stoddard vs. Hart, 23 N. Y.,. p. 560, and cases there cited, which adopt and enforce the logical consequences of the modification of the law of mortgages, making them mere liens for the security of debts, passing no estate in the land till sale. These consequences are, that a payment after the law day discharges the mortgage,

and is followed by the same consequences as a payment made on the law day. The Court say: “If payment after the law day has the same effect as payment on the law day, it would seem that there could be no good reason for not giving the same effect to a tender made after as to one made on the law day.

And so the cases cited hold. The same principle is adopted in Michigan, where a similar doctrine as to the character of mortgages prevails.-Caruthers vs. Humphrey, 12 Mich., p. 277; Van Husen vs. Kanouse, 13 Mich., p. 313; see, also, Hayes vs. Josephi, 26 Cal., p. 545; Mahler vs. Newbauer, 32 Cal., p. 170. We think the reasoning in Kortright vs. Cady unanswerable; but in Perre vs. Castro, 14 Cal., p. 519 (decided before Kortright vs. Cady), on which respondents rely, our predecessors determined the question the other way." No peculiar rule is prescribed in this Title, because the matter is settled against the authority of the California cases cited, by the Chapter on Offer of Performance, Civil Code of California (annotated), Vol. I, p. 436.

Extinction 2910. The sale of any property on which there is by sale or conversion, a lien, in satisfaction of the claim secured thereby, or

in case of personal property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon.

Note.-Cortelyou vs. Lansing, 2 Caines Cas., p. 200; Dykers vs. Allen, 7 Hill, p. 497; Wilson vs. Little, 2 N. Y., p. 443; Lewis vs. Graham, 4 Abb. Pr., p. 106.

Lien extinguished by lapso of time under Statute of Limitations.

2911. A lien is extinguished by the lapse of the time within which, under the provisions of the Code OF Civil PROCEDURE, an action can be brought upon the principal obligation.

NOTE.-The contrary was held in New York as to a mortgage.-Pratt vs. Huggins, 29 Barb., p. 277; see Waltermire vs. Westover, 14 N. Y., p. 16. And as to a pledge.-Taunton vs. Goforth, 6 Dowl. & Ryl., p. 384; see Story on Bailm., Sec. 362. But the text is fully sustained by the California cases.--Heinlin vs. Castro, 22 Cal., p. 100; McCarthy vs. White, 21 Cal., p. 495; Lord vs. Morris, 18 Cal., p. 482; Lent vs. Morrill, 25 Cal., p. 492; Wormouth vs. Hatch, 33 Cal., p. 121; Arrington vs. Liscom, 34 Cal., p. 365; Cunningham vs. Hawkins, 24 Cal., p. 403.

Apportionment of lion.

2912. The partial performance of an act secured by a lien does not extinguish the lien upon any part of the property subject thereto, even if it is divisible.

Note.-Code of La., Arts. 3130, 3131, 3138; Code Napoleon, Sec. 2083; see to same effect, Boquet vs.


[ocr errors]

Coburn, 27 Barb., p. 230. Or purchasers. When a
lien is void as to general creditors, it is clear that it
must be void against purchasers, even without a strictly
val ble consideration. Restoration to owner as em-
ployé. So held as to a pledge (Macomber vs. Parker,
14 Pick., p. 497; Reeves vs. Capper, 5 Bing. N. C., p.
136), and the rule is equally applicable to any other
lien. For transient purposes.' So held as to a pledge.-
Hays vs. Riddle, 1 Sandf., p. 248; White vs. Platt, 5
Denio, p. 269; Roberts vs. Wyatt, 2 Taunt., p. 268.
Compare, however, McFarland vs. Wheeler, 26 Wend.,
p. 467, which is in principle applicable to all classes of

liens dependent upon possession.
2913. The voluntary restoration of property to its When

restoration owner by the holder of a lien thereon, dependent upon exting

guishes possession, extinguishes the lien as to such property, unless otherwise agreed by the parties, and extin und guishes it, notwithstanding any such agreement, as to creditors of the owner and persons acquiring a title to the property, or a lien thereon, in good faith, and for a good consideration, unless such restoration is made to the owner as a mere employé of the holder of the lien, or for a merely transient purpose.

NOTE.—“Voluntary.” Of course a restoration obtained by fraud does not affect the lien (Bigelow vs. Heaton, 6 Hill, p. 43; 4 Denio, p. 496), except as to intervening purchasers, etc., for value. “ By the holder.” A forcible taking from the lienor does not affect the lien.- Baker vs. Hoag, 7 N. Y., p. 557. “Extinguishes the lien." So held as to an ordinary lien (Bigelow vs. Heaton, 4 Denio, p. 496; Perkins vs. Boardman, 14 Gray, p. 481), and so as to a pledge.Story Bailm., Sec. 229. “As to such property.” A lien upon several articles is not lost as to all of them by the surrender of one. "Unless otherwise agreed." That the parties may otherwise agree, see Bigelow vs. Heaton, 4 Denio, p. 496. But such agreement will not bind creditors.-McFarland vs. Wheeler, 26 Wend., p. 467 (Ct. of Errors).








SECTION 2920. Mortgage, what.

2921. Property adversely held may be mortgaged.
2922. To be in writing.
2923. Lien of a mortgage, when special.
2924. Transfer of interest, when deemed a mortgage.
2925. Transfer made subject to defeasance may be proved.
2926. Mortgage, on what a lien.
2927. Mortgage does not entitle mortgagee to possession.
2928. Mortgage not a personal obligation.
2929. Waste.
2930. Subsequently acquired title inures to mortgagee.
2931. Foreclosure.
2932. Power of sale.
2933. Power of attorney to execute.
2934. Recording assignment of mortgage.
2935. Recording assignment of mortgage not notice to mort-

2936. Mortgage passes by assignment of debt.
2937. Time allowed for filing mortgage for record.
2938. Mortgage, how discharged.
2939. Same.
2940. Same.
2941. Duty of mortgagee on satisfaction of mortgage.
2942. Provisions of this Chapter do not affect bottomry or


Mortgage what.

2920. Mortgage is a contract by which specific property is hypothecated for the performance of an act, without the necessity of a change of possession.

NOTE.-At common law a mortgage was a conveyance of property, upon condition, as security for the payment of a debt or the performance of a duty, and to become void upon payment or performance. This conveyance was called a mortgage (or dead pledge), because whatever profit it might yield it did not thereby redeem itself, but became lost or dead to the mortgagor

« ПредыдущаяПродолжить »