Second. That the said premises now are free and clear of all incumbrances whatsoever, and that ha.... good right and lawful authority to convey the same in manner and form hereby conveyed. Third. That the part.... of the first part will keep the buildings on the said premises insured against loss by fire, for the benefit of the mortgagee. Fourth. That the part..... of the first part will pay the rents and other charges mentioned in and made payable by said indenture of lease within days after said rent or charges are payable. Fifth. And it is hereby expressly agreed that the whole of the payment of any tax or assessment for In witness whereof, the said part .... days of the first part to hand and seal.. the day and year first above written. in the presence of Formerly section 237 of the Real Property Law of 1896, chapter XLVI, General Laws: § 237. 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 and singular the premises hereinafter mentioned and described, together with their appurtenances; to have and to hold the same unto the said executors, administrators and assigns, for and during and until the full end and term of years, from the one thousand eight hundred and ninety day of fully to be complete and ended, yielding and paying therefor unto the said or assigns, the yearly rent or sum and to of And whereas, the said part debted to the said part of the first part of the second part, in the sum of justly in lawful money of the United States of America, secured to be paid by certain bond or obligation, bearing even date herewith, con on the and the interest at the rate of per centum ditioned for the payment of the said sum of It being thereby expressly agreed that the whole of the said principal sum shall become due at the option of the mortgagee or obligee after default in the payment of interest, taxes or assessments or rents as hereinafter provided. of the first Now this indenture witnesseth that the said part 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 the 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 hereinbefore provided. of the first part will pay the indebtedness as And if default shall be made in the payment of any part thereof the said part of the second part shall have power to sell the premises therein described according to law. Second. That the said premises now are free and clear of all incumIrances whatsoever, and that ha good right and lawful authority to convey the same in manner and form hereby conveyed. Third. That the part aid premises insured against loss by fire, for the benefit of the mortgagee. Fourth. That the part of the first part will pay the rents and other charges mentioned in and made payable by said indenture of lease within days after said rent or charges are payable. of the first part will keep the buildings on the Fifth. And it is hereby expressly agreed that the whole of the said principal sum shall become due at the option of the said mortgagee or obligee after default in the payment of any instalment of principal, or after default in the payment of interest for days, or after default in the payment of any rent or other charge made payable by said indenture of lease for days, or after payment54 of any tax or assessment for days after notice and demand. In witness whereof, the said part of the first part to these presents and seal the day and year first above in the presence of 54 Comment on Section. This section was not a part of the original Real Property Law, as originally passed in 1896. It was enacted by chapter 338, Laws of 1898, and became a law on July 1, 1898. This section is a part of the reform intended to relieve the public offices from the necessity of transcribing long forms of conveyances.55 It should be read in connection with the two sections last preceding it.56 The Consolidated Laws have made only one verbal change in this section. Mortgagee's Liability for Rent. A mortgagee of a lease, if he has not taken possession, actually or constructively, is not liable for rent;57 but he may pay same if it is in default and sue tenant.58 Short Form. If a short form of mortgage is intended to be used, it is important that it be adopted literally, or the benefit of the statutory interpretation of the covenant may be lost.59 54 So in original law. It must mean "after default in the payment," etc. 54 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 55 See above, pp. 917, 919. 56 §§ 271, 272, Real Prop. Law. 57 Levy v. Long Island Brewery, 26 Misc. Rep. 410. 58 Dunlop v. James, 174 N. Y. 411. 59 Mutual Benefit Loan Co. V. Jaeger, 34 App. Div. 90; Rawle, Cov. for Tit. (5th ed.), p. 454, note 4. § 274. Transfers and mortgages of interest in decedents' estates. Every conveyance, assignment, or other transfer of, and every mortgage or other charge upon the interest, or any part thereof, of any person in the estate of a decedent which is situated within this state, shall be in writing, and shall be acknowledged or proved in the manner required to entitle conveyances of real property to be recorded. Any such instrument may also be recorded as hereinafter provided; and if not so recorded, it is void against any subsequent purchaser or mortgagee of the same interest or any part thereof, in good faith and for a valuable consideration, whose conveyance or mortgage is first duly recorded. If such interest is entirely in the real property of a decedent, the conveyance or mortgage shall be recorded in the office of the clerk of the county where such real property is situated. If such interest is in both the personal and the real property of a decedent, the conveyance or mortgage shall be recorded in the office of the surrogate issuing letters testamentary or letters of administration upon the said decedent's estate, or if no such letters have been issued, then in the office of the surrogate having jurisdiction to issue the same, and also in the office of the said county clerk. Such a conveyance or mortgage when so recorded, shall be indexed under the name of the decedent, in a book to be kept for that purpose by each recording officer. The person presenting any such instrument for record shall pay to the clerk of the surrogate's court a fee of ten cents for each folio. Formerly chapter 692, Laws of 1904: CHAP. 692. AN ACT relating to transfers and mortgages of interests in decedents' estates. Became a law May 9, 1904, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTION 1. Every conveyance, assignment, or other transfer of, and every mortgage or other charge upon the interest, or any part thereof, of any person in the estate of a decedent which is situated within this state, shall be in writing, and shall be acknowledged or proved in the manner required to entitle conveyances of real property to be recorded. Any such instrument may also be recorded as hereinafter provided; and if not so recorded, it is void against any subsequent purchaser or mortgagee of the same interest or any part thereof, in good faith and for a valuable considerauion, whose conveyance or mortgage is first duly recorded. If such interest is entirely in the personal property of a decedent, then the conveyance or mortgage shall be recorded in the office of the surrogate issuing letters testamentary or letters of administration upon the said decedent's estate, or if no such letters have been issued, then in the office of the surrogate having jurisdiction to issue the same. If such interest is entirely in the real property of a decedent, then the conveyance or mortgage shall be recorded in the office of the clerk of the county where such real property is situated. If such the same. If such interest is entirely in the real property of a decedent, then the conveyance or mortgage shall be recorded in the office of the said surrogate and also in the office of the said county clerk. Such a conveyance or mortgage when so recorded, shall be indexed under the name of the decedent, in a book to be kept for that purpose by each recording officer. § 2. This act shall take effect immediately.60 Comment. This section of this act is taken literally from chapter 692, Laws of 1904, as amended by chapter 173, Laws of 1908, without change, except to make its application exclusively directed to real property. The corresponding provisions, relating to personal property, are transferred to section 32 of the Personal Property Law. Both together, therefore, embrace the entire contents of chapter 692, Laws of 1904. 61 As all species of property, and nearly all future and contingent interests therein, are now freely assignable at law or in equity, it may be well to point out that catching bargains with expectant or putative heirs, "post obits," and the transferability of mere possible interests or heirship in estates of persons still living, afford sometimes exceptions to the general rule denoted.62 Equity does not favor such transactions and unless completely fair will not enforce them when executory. This act does not refer, it will be observed, to any such interests, but refers only to existing interests in the estates of persons actu 60 Repealed by 8 80 of art. 5 of Pers. Prop. Law, chap. 41, Consol. Laws of 1909, and § 460, art. 14, chap. 50, Consolidated Laws of 1909. 61 Moore v. Littel, 41 N. Y. 66, 84; Parmelee v. Cameron, 41 id. 392; Stover v. Eycleshimer, 3 Keyes, 620, 623; Kenyon v. See, 94 N. Y. 563; Kinyon v. Kinyon, 31 Abb. N. C. 76; Story, Eq Juris., §§ 1040, 1055. 62 Goodeve, Pers. Prop. 127; Anson, Contracts, 221; Pomeroy, Eq. Juris., 953, 954. |