The This Section Said to Repeal Original of Subdivision 3, Section 254. original act incorporating this section was said to repeal subdivision of section 254.* But as the reason was not apparent both sections still stand in the Consolidated Laws.43 3 42 Mortgage on Chattels Real to be Recorded. A lease beyond three years is a chattel real44 and must be recorded in order to be operative as notice to bona fide purchasers.45 42 Heal v. Richmond County Savings Bank, 127 App. Div. 428. 43 See § 254, supra, pp. 844, 849. Brewing Co. v. Gass, 53 Misc. Rep. 363; 120 App. Div. 147. 45 § 290, infra. § 272. Construction of grant of appurtenances, and all of the rights and estate of the mortgagor. In any mortgage on a lease of real property the words "together with the appurtenances and all the estate and rights of the part.... of the first part of, in and to said premises under and by virtue of the aforesaid indenture of lease," must be construed as meaning, together with all and singular the edifices, buildings, rights, members, privileges and appurtenances thereunto belonging or in anywise appertaining; and also all the estate, right, title, interest, term of years yet to come and unexpired, property, possession, claim and demand whatsoever, as well in law as in equity, of the said mortgagor or obligor, of, in and to the said demised premises, and every part and parcel thereof, with the appurtenances; and also the said indenture of lease, and the renewal therein provided for, and every clause, article and condition therein expressed and contained. Formerly section 236, Real Property Law of 1896, chapter XLVI, General Laws: § 236. Construction of grant of appurtenances, et cetera, and all of the rights and estate of the mortgagor.- In any mortgage on lease of real property the words "together with the appurtenances and all the estate and rights of the part of the first part of, in and to said premises under and by virtue of the aforesaid indenture of lease," must be construed as meaning, together with all and singular the edifices, buildings, rights, members, privileges and appurtenances thereunto belonging or in anywise appertaining; and also all the estate, right, title, interest, term of years yet to come and unexpired, property, possession, claim and demand whatsoever, as well in law as in equity, of the said mortgagor or obligor, of, in and to the said demised premises, and every part and parcel thereof, with the appurtenances; and also the said indenture of lease, and the renewal therein provided for, and every clause, article and condition therein expressed and contained.46 Comment on Section. The original of this section was not a part of the former Real Property Law, as originally passed in 1896, but it was enacted by chapter 338, Laws of 1898, and became a law on July 1, 1898. Section 272 of this act now refers to the form set out in section 273 of this act. This section is a part of the reform intended to relieve the public record offices from the necessity of 46 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. transcribing long forms of conveyances.47 This section should be read in connection with the sections immediately preceding and subsequent.48 49 Mortgage, on Lease. In former days the common way of mortgaging a lease, adopted by good conveyancers, was by an assignment of the same by way of mortgage. It must be very doubtful whether. a mortgage of a lease is not now virtually an assignment thereof, as the mortgagee must acquire the same cum onere. The form set out in this statute50 seems defective in making no provision for the delivery up of the original lease on default of the mortgagor to observe his covenants, and evidently contemplates a foreclosure, before the mortgagee shall succeed to the security mortgaged. Foreclosure Sale of Lease. A purchaser at a sale in action to foreclose a mortgage on a lease is not to be relieved because of pendency of action to set aside the lease, if he knew of such pendency at the time of the sale.51 Mortgagee of Leasehold may Pay Rent. A mortgagee of a leasehold may pay rent if it is overdue, and maintain his action over against the tenant.5 52 Mortgage or Lease. If the term extends beyond three years, a mortgage thereon may be recorded in proper office and when recorded is operative as notice.53 § 273. What form of mortgage on lease of real property. The use of the following form of instrument for mortgages on leases of real property is lawful, but this section does not prevent or invalidate the use of other forms. and to demise, lease ex one thousand nine hundred and ... .. and to one thousand nine hundred and .... fully to be complete and ended, yielding and paying therefor unto the said ... or assigns, the yearly rent or sum of and to And whereas, the said part.... of the first part justly indebted to the said part .... of the second part, in the sum of lawful money of the United States of certain bond or obligation, bearing even date herewith, conditioned for the America, secured to be paid by It being thereby expressly agreed that the whole of the said principal sum shall become due at the option of the mort gagee or obligee after default in the payment of interest, taxes or assessments or rents as hereinafter provided. Now this indenture witnesseth that the said part .... of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, and also for and in consideration of the sum of one dollar, paid by the said part .... of the second part, the receipt whereof is hereby acknowledged, doth grant and release, assign, transfer and set over unto said part.... of the second part, and to his heirs (or successors) and assigns forever. (Description.) Together with the appurtenances and all the estate and rights of the part.... of the first part of, in and to said premises under and by virtue of the aforesaid indenture of lease. To have and hold the said indenture of lease and renewal, and the above granted premises, unto the said part....of the second part, his heirs and assigns, for and during all the rest, residue and remainder of the said term of years yet to come and unexpired, in said indenture of lease and in the renewals therein provided for; subject, nevertheless, to the rents, covenants, conditions and provisions in the said indenture of lease mentioned. Provided always that if the said part.... of the first part shall pay unto the said part.... of the second part, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, that then these presents and the estate hereby granted, shall cease, determine and be void. And the said part.... of the first part covenant.... with the said part.... of the second part as follows: First. That the part.... of the first part will pay the indebtedness as hereinbefore provided. And if default shall be made in the payment of any partthereof the said part.... of the second part have power to sell the premises therein described according to law. |