the property, and for a sale of the same to satisfy the claim. Thus, the deposit of school land certificates as security created an equitable mortgage. In this country, such mortgages are not in favor and are seldom met with in practice, as there is no protection in case the lands represented by the deeds are sold to a bona fide purchaser for value, as an equitable mortgage cannot be recorded.

Assignment.-A mortgage being simply an incident to a debt, the transfer of the debt carries the mortgage with it as between the parties. Whatever transfers the indebtedness, transfers the security. Thus, a valid sale and transfer of a non-negotiable note can be made by parol so as to vest the same and the mortgage debt of which it is evidence, in the purchaser, and such a sale will carry with it the mortgage without any written assignment thereof. Where there is more than one note, the assignment of one of them is a pro tanto assignment of the mortgage and where there are several notes falling due at different times, secured by the same mortgage, they are payable in the order of their maturity out of the property on which they are secured, unless special equities intervene. The parties may, however, contract differently and may release one or all notes of the security entirely, or change their priority, if they see fit. But it is always best that a mortgage be assigned with the same formalities as required for the execution of a deed, that is, by a written, signed, sealed, attested and acknowledged instrument and then duly recorded. Our statute prescribes a form of assignment (See Forms), and provides that such "shall be sufficient to vest in the assignee for all purposes all the rights of the mortgagee under the mortgage described and the amount of the indebtedness due thereon at the date of the assignment. Such assignment, when endorsed upon the original mortgage, shall not require an acknowledgment in order to entitle the same to be recorded." The form of assignment in general use contains a covenant of title and of the amount due on the indebtedness. The recording of the assignment of a mortgage in itself is not notice to the mortgagor of such assignment so as to invalidate any payment made by him to the mortgagee. He should be personally notified.

How mortgage is extinguished.-The usual way of extinguishing a mortgage is by payment of the debt, when a

satisfaction is given, which, in order to entitle it to record, must be executed the same as a conveyance entitled to record. This is the common practice. Where the payment of certain notes is secured by mortgage, the taking of new notes, though for a less amount, in satisfaction of the original notes extinguishes the liability on the original notes and the mortgage lien is discharged, as the mortgage can only exist as an incident to the indebtedness evidenced by the original notes. A quit-claim deed given by the mortgagee to the mortgagor discharges the mortgage.

A mortgage may also be extinguished by merger, which takes place when the interests of the mortgagor and mortgagee unite in the same person without any intermediate estate or incumbrance, but in such cases the actual or presumed intention of the mortgagee governs, and if it is for his interest that there be no merger, there will be none. When there is an intervening mortgage, there is no merger, and the purchasing by a prior mortgagee of the equity of redemption of the mortgaged premises does not work a merger, but where the mortgagee, who was an heir of the mortgagor, secured the interests of the other heirs in the premises, there was a merger. After a note and mortgage has been assigned, the assignor cannot discharge same without the assent of the assignee. A mortgage is personal property and after the death of the mortgagee may be released or transferred by the personal representative of the mortgagee. A mortgagor is entitled to a satisfaction when all the conditions of the mortgage have been performed by him, (usually payment of interest and principal), and our statute provides: "If any mortgagee, his personal representative or assignee, after a full performance of the condition of the mortgage, whether before or after a breach thereof, shall, for the space of seven days after being thereto requested and a satisfaction piece in due form being to him or them tendered for execution, after tender of legal charges, refuse or neglect to discharge the same as provided in this chapter or to execute and acknowledge a certificate of discharge or release thereof, he shall be liable to the mortgagor, his heirs and assigns in the sum of one hundred dollars damages and also for actual damages occasioned by such neglect or refusal, to be recovered in an action." This is a penal statute and is strictly construed; the mortgagor must show full performance and tender.

Record of discharge of mortgage.-"Any mortgage

which shall have been recorded may be discharged by an entry in the margin of the record thereof, acknowledging the satisfaction thereof, signed by the mortgagee, his personal representative or assignee in the presence of the register of deeds or his deputy, who shall subscribe the same as a witness; or by the representation to the register of deeds in whose custody the record shall be of a certificate executed by the mortgagee, his personal representative or assignee, and acknowledged or proved and certified as hereinbefore described to entitle conveyances to be recorded, specifying therein that such mortgage has been paid or otherwise satisfied or discharged; and either such discharge shall have the same effect as a deed of release by the mortgagee duly executed, acknowledged and recorded."

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Recording. What has been said in the section on Deeds regarding recording applies to mortgages, as our statute defines a 'conveyance' to be "every instrument in writing by which an estate or interest in real estate is aliened, mortgaged or assigned, or by which the title of any real estate may be affected, in law or equity except wills and leases for a term not exceeding three years," and a purchaser to be "every person to whom any estate or interest in real estate shall be conveyed for a valuable consideration, and also every assignee of a mortgage or lease or other conditional estate," and this includes mortgages. A subsequent mortgagee in good faith and for a valuable consideration who first records his conveyance, is, therefore, protected under this recording acts the same as a like purchaser by deed would be. This instrument must be executed as prescribed for a conveyance in order to entitle it to record. If not entitle to record, it is not constructive notice though recorded.-See Deeds. A mortgagee has the right to rely on the records of title as they appear in the register of deeds office, but he must not have actual notice of prior incumbrances or knowledge of information sufficient to put a reasonably prudent man upon inquiry, and he is bound to inquire, who is in actual possession of the premisses and the nature of his holding. A mortgagee in possession need not record his mortgage as his actual possession is notice to the world. The priority of mortgages among themselves is determined by the time they are received for record, if there was no knowledge of a prior unrecorded mortgage. When two mortgages are given on the same premises at the

same time and recorded at the same time, if one is for purchase money, and the other not, the purchase money mortgage takes precedence. If they are both ordinary mortgages and there is an understanding or agreement that one shall be a first mortgage, this is binding on the parties, even where the second mortgage is first recorded.

Foreclosure and redemption.-When there has been default or a breach of condition in a mortgage according to its terms, as by non-payment of interest or principal, or instalments thereof, the mortgagee may proceed to satisfy his claim by foreclosing the mortgage. Most mortgages contain a clause that the mortgagee, at his option, may declare the whole mortgage due on default in payment of an instalment or interest. In such case notice must be given before suit is brought. The action to foreclose may be brought at any time within twenty years, when the statute of limitation bars the claim, while suit, on the note usually accompanying a mortgage is barred in six years. (See the chapter on Limitation.) Of foreclosure by advertisement under power of sale mention has been made in a previous section. The statute prescribes the procedure and directs that the premises be sold not earlier than at the expiration of one year from the date of the judgment or order of sale. A deficiency judgment may also be prayed for, if there is danger that the proceeds of the sale will not pay the mortgage debt and costs. The mortgagor or those claiming under him may then redeem at any time before sale by paying the amount due and costs. If the premises are sold, the sheriff gives the purchaser a deed, the proceeds are turned into court and any balance remaining after the debt, interest and costs are paid, is turned over to the mortgagor. A receiver may also be appointed if the mortgagor in possession commits waste during the time of redemption or if the security is inadequate to pay the mortgage debt, and the income during the period of redemption should be applied to the indebtedness. Ordinarily, the mortgagor is entitled to the possession of the premises during the period of redemption, but if the mortgagee gets peaceable and lawful possession of the premises, he is entitled to retain same until the mortgage is satisfied. In such cases, the mortgagee in possession must account for the crops, rents and profits received by him during the period of redemption.

CHAPTER XXVII.

LANDLORD AND TENANT.

SECTION I.

The Relation.--The relation between landlord and tenant has become a very important one. It is created by contract, express or implied. As soon as a lease has been made by parties competent to contract, either orally or in writing, the relation of landlord and tenant is established, and a certain privity of estate arises, which binds the parties to each other in respect to the duties imposed by law and the implied and express covenants. By the contract, the landlord, for a consideration, allows the tenant to have the use and occupation of certain premises. The landlord or lessor is the person whose land is occupied, while the tenant or lessee is the person in occupation in subordination to the landlord's title. The relation will not be inferred from the mere occupancy of the land of another. There must be a contract, express or implied. One who enters upon the lands of another without legal right and not in subordination to the title of the real owner, is a mere trespasser and the relation of landlord and tenant does not exist. However, the parties may thereafter form the relation, expressly or by implication. Payment of rent raises the presumption that the relation exists. Our supreme court has held that the relation of landlord and tenant does not exist between a son and his parents, where the latter entered into possession under an oral agreement with the son that they should occupy the premises as a home free and without any reservation of rent during their lives, and the father afterwards made valuable improvements. And although a lease executed on Sunday is absolutely void and incapable of ratification, yet subsequent occupation of the premises and payment of rent by the lessee, creates a tenancy, the terms of which will depend upon express contract, or a