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CHAPTER II.

Mortgage.
Article I. Mortgages in General.

II. Mortgages of Real Property.
III. Mortgages of Personal Property.

ARTICLE I.

Mortgages in General.

Section

Section 2920. Mortgage, what.

2931. Foreclosure. 2921. Property adversely held 2932. Power of sale. may be mortgaged.

2933. Power attorney to execute. 2922. To be in writing.

2934. Recording assignment. 2923. Lien of a mortgage when 2935. Not notice to mortgagor. special.

2936. Passes by assignment debt. 2924. Transfer generally, when 2938. Mortgage marginal release.

mortgage and when pledge. 2939. Same. 2925. Transfer defeasance may be 293942. Satisfying by foreign exproved.

ecutors, generally. 2926. Mortgage, on what a lien. 2940. Mortgagee to satisfy. 2927. Mortgagee not entitled to 2941. Duty of mortgagee on satispossession.

faction of mortgage. 2928. Not a personal obligation. 2942. Chapter does not affect bot2929. Waste.

tomry or respondentia. 2930. Subsequently acquired title

inures to mortgagee.

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,

2921. A mortgage may be created upon property held adversely to the mortgagor.

2922. A mortgage can be created, renewed, or extended, only by writing, executed with the formalities required in the case of a grant of real property.

2923. The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of possession.

2924. Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge.

Where, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which

such mortgage or transfer is a security, such power shall not be exercised, except where such mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the commissioner of corporations, or is made by a public utility subject to the provisions of the public utilities act, until (a) the trustee, mortgagee or beneficiary shall first record, in the office of the recorder of the county wherein the mortgaged or trust property or some part thereof is situated, a notice of such breach and of his election to sell or cause to be sold such property to satisfy the obligation; (b) not less than three months shall thereafter elapse; and (c) the mortgagee, trustee or other person anthorized to make the sale shall give notice of the time and place thereof, in the manner and for a time not less than that required by law for sales of real property upon execution. 1923.

2925. The fact that a transfer was made subject to defeasance on a condition, may, for the purpose of showing such transfer to be a mortgage, be proved (except as against a subsequent purchaser or encumbrancer for value and without notice) though the fact does not appear by the terms of the instrument.

2926. A mortgage is a lien upon everything that would pass by a grant of the property.

2927. A mortgage does not entitle the mortgagee to the possession of the property, unless authorized by the express terms of the mortgage; but after the execution of the mortgage the mortgagor may agree to such change of possession without a new consideration.

2928. A mortgage does not bind the mortgagor personally to perform the act for the performance of which it is a security, unless there is an express covenant therein to that effect.

2929. No person whose interest is subject to the lien of a mortgage may do any act which will substantially impair the mortgagee's security.

2930. Title acquired by the mortgagor subsequent to the execution of the mortgage, inures to the mortgagee as security for the debt in like manner as if acquired before the execution. 1873-260.

2931. A mortgagee may foreclose the right of redemption of the mortgagor in the manner prescribed by the Code of Civil Procedure.

2932. A power of sale may be conferred by a mortgage upon the mortgagee or any other person, to be exercised after a breach of the obligation for which the mortgage is a security.

2933. A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged, or proved, certified, and recorded in like manner as powers of attorney for grants of real property.

2934. An assignment of a mortgage may be recorded in like manner as a mortgage, and such record operates as notice to all persons subsequently deriving title to the mortgage from the assignor. 1873 --261.

2935. When the mortgage is executed as security for money due, or to become due, on a promissory note, bond, or other instrument, designated in the mortgage, the record of the assignment of the mortgage is not, of itself, notice to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the person holding such note, bond, or other instrument. 1873–-261.

2936. The assignment of a debt secured by mortgage carries with it the security.

2938. A recorded mortgage may be discharged by an entry in the margin of the record thereof, signed by the mortgagee, or his personal representative or assignee, acknowledging the satisfaction of the mortgage in the presence of the recorder, who must certify the acknowledgment in form substantially as follows: “Signed and acknowledged before me, this -~ day of — ~, in the year — A B, Recorder.”

2939. A recorded mortgage, if not discharged as provided in the preceding section, must be discharged upon the record by the officer having custody thereof, on the presentation to him of a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified as prescribed by the chapter on "recording transfers,” stating that the mortgage has been paid, satisfied, or discharged.

293912. Foreign executors, administrators and guardians may satisfy mortgages upon the records of any county in this state, upon producing and recording in the office of the county recorder of the county in which such mortgage is recorded, a duly certified and authenticated copy of their letters testamentary, or of administration or of guardianship, and which certificate or authentication shall also recite that said letters have not been revoked. 1913–216.

2940. A certificate of the discharge of a mortgage, and the proof or acknowledgment thereof, must be recorded at length, and a reference made in the record to the book and page where the mortgage is recorded, and in the minute of the discharge made upon the record of the mortgage to the book and page where the discharge is recorded.

2941. When any mortgage has been satisfied, the mortgagee or his assignee must immediately, on the demand of the mortgagor, execute, acknowledge, and deliver to him a certificate of the discharge thereof, so as to entitle it to be recorded, or he must enter satisfaction, or cause satisfaction of such mortgage to be entered of record; and any mortgagee, or assignee of such mortgagee, who refuses to execute, acknowledge, and deliver to the mortgagor the certificate of discharge, or to enter satisfaction, or cause satisfaction of the mortgage to be entered, as provided in this chapter, is liable to the mortgagor, or his grantee or heirs, for all damages which he or they may sustain by reason of such refusal, and shall also forfeit to him or them the sum of one hundred dollars. 1880-11.

2942. Contracts of bottomry or respondentia, although in the nature of mortgages, are not affected by any of the provisions of this chapter.

ARTICLE II.
Mortgages of Real Property.

Section

Section 2947. What may be mortgaged. 2950. Defeasance generally. 2948. Form of mortgage.

2952. Recording mortgages. 2947. Any interest in real property which is capable of being transferred may be mortgaged.

2948. A mortgage of real property may be made in substantially the following form:

This mortgage, made the day of - , in the year — by A B, of --, mortgagor, to CD, of --, mortgagee, witnesseth:

That the mortgagor mortgages to the 'mortgagee [here describe the property], as security for the payment to him of dollars, on (or before the day of ---, in the year with interest thereon (or as security for the payment of an obligation, describing it, etc.] A. B.

2950. When a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such grant is not defeated or affected as against any person other than the grantee or his heirs or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the county recorder of the county where the property is situated.

2952. Mortgages of real property may be acknowledged or proved, certified and recorded, in like manner and with like effect, as grants thereof. 1873–262.

ARTICLE III.

Mortgage of Personal Property. Section

Section 2955. What property may be 2964. Certified copies, when. mortgaged.

2965. Removal generally. 2956. Form, personal mortgage. 2966. Taken as a pledge, when. 2957. Void as to third person, 2967. How foreclosed. when.

2968. How levied upon. 2958. Ships, when void, as to 2969. Limitations, right of levy. third person.

2970. Distribution of sale under 2959. Where recorded.

process. 2960. Where recorded, in transit. 2971. Exception certain sections 2961. Common carrier, where re pertaining to ships. corded.

2972. Mortgage on crops gener2962. Recorded in different places. ally. 2963. Personal mortgage record- 2973. Validity certain mortgages.

ed.

2955. Mortgages may be made upon all growing crops, including grapes and fruit, and upon any and all kinds of personal property, except the following:

1. Personal property not capable of manual delivery;
2. Articles of wearing-apparel and personal adornment;
3. The stock in trade of a merchant. 1909–34.

2956. A mortgage of personal property may be made in substantially the following form:

This mortgage, made the -- day of - in the year --, by A B, of — , by occupation a ---, mortgagor, to CD, of — , by occupation a--, mortgagee, witnesseth:

That the mortgagor mortgages to the mortgagee [here describe the property], as security for the payment to him of dollars, on (or before the day of --, in the year --, with interest thereon [or, as security for the payment of a note or obligation, describing it, etc.] A. B.

2957. A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless:

1. It is accompanied by the affivadit of all the parties thereto that it is made in good faith and without any design to hinder, delay, or defraud creditors;

2. It is acknowledged or proved, certified, and recorded in like manner as grants of real property.

2958. A mortgage of any vessel or part of any vessel under the flag of the United States is void as against any person (other than the mortgagor, his heirs, and devisee, and persons having actual notice thereof) unless the mortgage is recorded in the office of the collector of customs where such vessel is registered or enrolled.

2959. A mortgage of personal property must be recorded in the office of the county recorder of the county in which the mortgagor resides, if the mortgagor be a resident of this state, and it shall also be recorded in the county in which the property mortgaged is situated or, save in the case of live stock, vehicles (other than motor vehicles) and other migratory chattels, to which it is removed. 1923.

2960. For the purposes of this article property in transit from the possession of the mortgagee to the county of the residence of the mortgagor, or to a location for use, is during a reasonable time for such transportation, to be taken as situated in the county in which the mortgagor resides, or where it is intended to be used.

2961. For a like purpose personal property used in conducting the business of a common carrier is to be taken as situated in the county in which the principal office or place of business of the carrier is located.

2962. A single mortgage of personal property, embracing several things of such character or so situated that by the provisions of this article separate mortgages upon them would be required to be recorded in different places, is only valid in respect to the things as to which it is duly recorded.

2963. Except as it is otherwise in this article provided, mortgages of personal property may be acknowledged or proved and certified, recorded in like manner and with like effect as grants of real property; but they must be recorded in books kept for personal mortgages exclusively.

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