A Treatise on the Law of Mortgages and Deeds of Trust: Founded on the Laws and Judicial Decisions of the State of Illinois

Henry Campbell Black

Callaghan, 1903 - 621 páginas

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CHAPTER	xxx

THE NATURE OF MORTGAGES 1 Ancient History of Mortgages	1

Roman Law of Mortgages	6

Influence of Roman Law on English Law of Mortgages 4 Strict CommonLaw Doctrine of Mortgages	10

Origin and Establishment of the Equity of Redemption	11

FORECLOSURE BY SUIT IN EQUITY PART I JURISDICTION	12

CommonLaw and Equitable Doctrines Concurrent	14

Mortgages in Illinois	16

CHAPTER XIX	285

Redemption by Heir Contribution by Widow	288

Dower in Surplus on Foreclosure	289

Widow of Mortgagee Not Dowable	290

CHAPTER XX	291

CHAPTER XXI	301

Same Mortgage Not Recorded	302

Same Covenant Against Incumbrances	303

Termination of Mortgagees Title 8 Once a Mortgage Always a Mortgage	21

Mortgage Distinguished from Assignment for Creditors Conditional Sales Distinguished 12 Same Intention of Parties to Govern	24

Same Presumption from Face of Papers	25

Same Tests for Determining Character of Transaction 15 Same Existence of Debt or Loan 16 Same Previous Negotiations of the Parties 17 Same Inad...	28

Same The Rule in Cases of Doubt	29

CHAPTER II	30

Grounds of Equitable Jurisdiction	36

Parol Evidence Admissible	38

Presumption and Burden of Proof	39

Quantum of Evidence Required	40

What Evidence Admissible	41

Same Declarations of Parties	43

Same As to Existence of Debt	44

Rights of Grantor	46

Loss or Relinquishment of Equity of Redemption	48

Rights of Creditors of Grantor	49

Rights of Purchaser from Grantee	50

EQUITABLE MORTGAGES 33 Equitable Mortgages in General 34 Mortgages Defectively Executed 35 Informal Writings Creating a Lien 36 Agre...	52

Vendors Lien 39 Deposit of Title Deeds	57

CHAPTER IV	59

Removal and Substitution of Trustees	66

Powers and Duties of Trustees	68

Release on Payment	70

Mortgages with Power of Sale	71

CHAPTER V	73

Mortgage of Corporate Franchises	74

Authority of Board of Directors	76

Mortgage made by Officers of Corporation	78

Defense of Ultra Vires and Invalidity 55	79

Mortgages by Railroad Companies	80

Religious Corporations	81

Loan Associations 58 Municipal Corporations	82

Consolidated Corporations	83

CHAPTER VI	84

Description of Property Mortgaged	86

Statement of Debt Secured	89

Anticipation of Time of Payment	90

Covenant for Payment of Debt	91

Habendum	92

Covenants of Title and Warranty	93

Reforming Mortgage of Married Woman 79 Intervening Rights of Third Persons	104

Cancellation of Mortgages	106

CHAPTER VII	107

Necessity of Acknowledgment 83 Who May Take Acknowledgment	109

Disqualification of Officer Taking Acknowledgment	110

Acknowledgment Taken in Another State	111

Requisites of Certificate	112

Impeaching Certificate of Acknowledgment	113

Damages for False Certificate	114

Delivery of a Mortgage	115

Constructive Delivery	116

CHAPTER VIII	117

Undivided Interests in Land	131

Inchoate Title to Public Lands	135

Buildings Considered as Realty	136

CHAPTER X	138

Same Release of Homestead	140

Same PurchaseMoney Mortgage	141

AfterAcquired Title	142

Fixtures	143

Rules for Determining Fixtures	145

Improvements on the Land	147

Products of the Soil	148

Accretions	149

Rents and Profits 121 Mortgage of Both Realty and Personalty	150

CHAPTER XI	151

Future Advances	156

Mortgage by Surety or Guarantor	157

Indemnity Mortgages	158

Usury	160

Same Commissions of Broker or Agent	161

Same Interest on Overdue Interest 131 Same Stipulation for Attorneys Fee Taxes and Insurance	163

Same Contracts of Loan Associations	164

Same Conflict of Laws 134 Same Relief in Equity on Bill to Redeem	165

Same On Bill for Foreclosure	166

Right of Mortgagors Grantee to Plead Usury	167

Right of Junior Mortgagee to Allege Usury	169

CHAPTER XII	171

Fraud or Deception Practised on Mortgagor	175

Mortgages Obtained by Duress	178

Illegality of Consideration	180

Agreement to Stop Criminal Prosecution	181

Gambling Contracts	182

Conflict of Laws	183

CHAPTER XIII	185

Contents of Record Description of Property 151 Same Statement of Amount of Debt	187

Place of Record	188

Effect of Unrecorded Mortgage	189

Record as Constructive Notice	190

Effect of Destruction of Record 156 Registration Under Land Titles	191

CHAPTER XIV	193

Priority as Against Judgment Liens	199

Priority as Between Mortgage and Mechanics Lien 162 Priority as Fixed By Date of Record	200

Same Mortgages Filed the Same	201

Priority of Taxes and Other Statutory Liens	203

Displacement of Mortgage Lien by Receivers Certificates	204

Postponement of Elder to Junior Lien	205

PurchaseMoney Mortgages	206

Lien of Unrecorded Mortgage	209

CHAPTER XV	210

Rights of Junior Mortgagee Paying Off Senior Mortgage	212

Doctrine of Tacking	213

174 Redemption from Elder Mortgage	214

Compelling Foreclosure of Senior Mortgage 176 Effect of Foreclosure of Senior Mortgage	215

CHAPTER XVI	221

Consideration for Assignment	225

Mode of Making Assignment	226

Assignment of Debt Without Mortgage	227

Assignment of Mortgage Without Debt	228

Constructive and Equitable Assignments	229

Assignment of Trust Notes 187 Separate Assignment of Separate Notes	231

Same Order of Payment	232

Assignment as Collateral Security 190 Successive Assignments	235

What Passes by Assignment	238

Right of Assignee to Foreclose 193 Giving Notice to Mortgagor	240

Recording Assignment 195 Assignment Subject to Equities Between Original Parties	242

Same Estoppel of Mortgagor to Defend	244

Same Exceptions to General Rule	246

Same The Act of 1901	247

Same Rule of the Federal Courts	248

Same Latent Equities of Third Persons	249

Discharge or Release of Mortgage by Assignor	250

Guaranty of Notes and Mortgage Assigned	252

CHAPTER XVII	254

Mortgaging Insured Premises Effect on Policy	256

Same Absolute Deed as Mortgage 206 Same Alienation by Foreclosure	258

Insurable Interest of Mortgagor	259

Insurance by Mortgagor for his own Benefit	260

Covenant of Mortgagor to Insure	261

Same Charging Mortgagor with Premiums	262

Same Mortgagees Equitable Lien on Policy	263

Assignment of Policy to Mortgagee	264

Effect of Making Policy Payable to Mortgagee	265

Same Adjustment of Loss	266

Special Mortgage Clause in Policy	267

CHAPTER XVIII	272

Not Invalid as Double Taxation 221 Situs of Mortgages for Purposes of Taxation	273

Same Case of State Tax on ForeignHeld Bonds	274

Same Mortgages Held by NonResidents 224 Same Mortgages in Hands of Local Agents	275

Assessment of Taxes on Mortgaged Lands 226 Relative Rank of Tax Lien and Mortgage Lien	276

Payment of Taxes by Mortgagor	277

Effect of Tax Clause in Mortgage	278

Payment of Taxes by Mortgagee	279

Tax Sale of Mortgaged Lands	281

Notice of Redemption from Tax Sale 232 Redemption or Purchase of Outstanding Tax Title	283

Suit to Set Aside Tax Sale	284

Sale of Land Subject to Existing Mortgage	304

Assumption of Mortgage by Purchaser	305

Same Deduction of Mortgage from Purchase Price	307

Same Estoppel to Dispute Mortgage 259 Same Personal Liability of Purchaser	308

Same Mortgagees Right of Action Against Purchaser 261 Same Liability of Purchaser by Mesne Conveyances	310

Release of Mortgagors Liability 263 Mortgagors Liability as Surety	312

Sale of Part of Mortgaged Land Order of Liability on Fore	313

Same Land Sold Successively in Parcels	315

Judicial Sale of Mortgaged Land	316

Partition of Mortgaged Estate	317

Condemnation of Mortgaged Land under Eminent Domain	320

Dedication of Mortgaged Property to Public	322

CHAPTER XXII	323

Release of Part of Mortgaged Property	327

Successive Partial Releases on Payment by Installments	328

Effect of Release on Junior Liens	329

Renewal by Taking New Mortgage	330

Change or Substitution of Securities	331

Extension of Time of Payment	332

CHAPTER XXIII	335

Merger of Estates in Mortgagee	341

Mortgagee Buying at Judicial Sale	342

Purchase of Mortgage by Owner of Equity of Redemption	344

Equitable Rule as to Merger 292 Same Intention of Parties	345

Same Interests of Parties	346

CHAPTER XXIV	348

Tender 304 Form of Satisfaction or Discharge 305 Entry of Satisfaction on Margin of Record 306 Penalty for Failure to Enter Satisfaction	362

Fraudulent or Forged Satisfaction	363

NonResident Defendant	364

Cancelling Entry of Satisfaction	365

Release of Deed of Trust	366

General Doctrine of Subrogation	367

Subrogation on Partial Payment 312 Who Entitled to Subrogation	368

The Right to Foreclose	369

Same Purchaser of Mortgaged Premises	370

Same Purchaser at Void Foreclosure Sale	371

Same Stranger Advancing Money to Pay Mortgage 316 Volunteer Not Entitled to Subrogation CHAPTER XXV	373

Same In the Federal Courts	374

317 The Right of Redemption	375

Laches Barring Right to Redeem	377

Constitutionality of Statutes Regarding Redemption 320 Construction of Statutes Allowing Redemption	379

What Constitutes Redemption 322 Parties Entitled to Redeem	380

Same Junior Mortgagee	383

Same Volunteer	384

Redemption by Stranger for Mortgagors Benefit	385

Amount Required for Redemption	386

Partial or Proportionate Redemption	387

Agreement to Extend Time for Redemption	390

Redemption After Foreclosure Sale	391

Same By Judgment Creditor	394

Same Railroad Mortgages 333 Same Mode of Effecting Redemption	398

Same Paying Redemption Money to Clerk of U S Court 335 Suit in Equity to Redeem	400

Same Decree Terms Costs	402

CHAPTER XXVI	404

As Between Grantees of Different Parcels	406

As Between Life Tenant and Reversioner	407

As Between Junior Mortgagees	408

CHAPTER XXVII	409

Allowance for Taxes and Insurance 346 Allowance for Repairs and Improvements	414

Discharge of Prior Incumbrances	416

CHAPTER XXVIII	417

Action at Law to Recover Debt	420

Choice of Methods of Foreclosure	422

CHAPTER XXIX	424

Breach of Condition	437

Partial and Successive Foreclosures	438

Right to Anticipate Maturity of Debt	440

Same Notice of Mortgagees Election	442

Same Waiver of Forfeiture	443

Proceedings Against Estate of Deceased Mortgagor	444

LIMITATION OF ACTIONS 376 Statutory Limitation as to Foreclosures 377 Action After Debt is Barred 378 Circumstances Arresting the Statute 3...	445

Limitation in Case of Absolute Deed	448

PARTIES IN FORECLOSURE 381 General Rule as to Parties	449

Joint Mortgagees and Holders of Separate Notes	450

Mortgagees Successor in Interest 384 Representatives of Deceased Mortgagee	451

Parties	452

Corporation and Stockholders	453

Subsequent Purchaser from Mortgagor	454

When Mortgagor not a Necessary Party	455

Tenants in Possession 391 Same The State as Tenant 392 Adverse Claimants	456

Assignee in Bankruptcy of Mortgagor	457

Wife of Mortgagor	458

Personal Representatives of Deceased Mortgagor 396 Heirs of Mortgagor	459

Junior Incumbrancers	460

Senior Incumbrancers	461

Defendants Plea and Answer	463

Pleading	464

Evidence in General	465

Proof of Debt	466

DEFENSES 405 406 Defect or Failure of Title Defenses Available to Defendant 407 SetOff	468

PART VII	473

Rights and Duties of Receiver	478

Discharge of Receiver	479

DECREE OF FORECLOSURE	480

Decree of Strict Foreclosure	481

Same When not Proper	482

Same Cases Excepted by Statute 417 Frame of Decree of Strict Foreclosure	483

Decree of Foreclosure and Sale	484

Adjudication as to Amount	486

Terms as to Payment and Redemption	488

Personal Judgment not Proper	489

Validity and Effect of Decree	490

Review and Vacation of Decree	491

Conclusiveness of Decree	492

Lien of Decree	493

Decree for Deficiency	494

Same Jurisdiction	495

Same What Persons Liable	496

SALE ON FORECLOSURE 429 Formalities of Sale 430 Notice of Sale 431 Adjournment of Sale 432 Order of Sale	497

Sale in Separate Parcels	502

Setting Off Homestead 435 Who May Purchase	503

Married Women	504

Rights and Liabilities of Bidders	505

Report and Confirmation of Sale	506

RIGHTS OF FORECLOSURE PURCHASER 442 Title Acquired by Purchaser 443 How Affected by Errors or Reversal of Decree 444 Rights of Purc...	510

Possession Pending Redemption	514

Deed to Purchaser	515

Recovery of Possession Under Deed	516

Same Action of Forcible Detainer 450 Same Writ of Assistance	518

FEES AND COSTS 451 Taxation of Costs 452 Allowance of Attorneys Fees 453 Stipulation in Mortgage for Attorneys Fees	521

What is a Reasonable	524

Bill Must Pray Allowance of Fees	525

Allowance of Fees to Other Incumbrancers Made Parties 457 Attorneys Fee on Foreclosure of Trust Deed	526

DISTRIBUTION OF PROCEEDS 458 Application of Proceeds to Mortgage Debt 459 Same Mortgage Notes Held by Different Persons 460 Right to ...	527

CHAPTER XXXI	531

Same Delegation of Authority	534

Same Power of Sale in Mortgage 467 The Power to Sell	535

Notice of Sale	539

Time and Place of Sale	542

Presence of Trustee at Sale 471 Conduct of the Sale	543

Order of Sale	545

Terms of Sale	546

Adjournment of Sale	547

Who May Purchase	548

Defenses 360 Judgment	585

Execution	586

Nature of Mortgagees Title	588

Right of Possession	592

Marshalling Securities 178 Foreclosure of Junior Mortgage	598

Restraining Commission of Waste 248 Remedy for Impairment of Security 249 Rights of Mortgagee in Possession 250 Right to Rents and Profits 251...	600

Infants 93 Guardians 94 Lunatics and Spendthrifts 95 Executors and Administrators	603

Partners 97 Agents and Attorneys 98 Trustees 99 Receivers 100 Joint Mortgagors and Joint Mortgagees 101 Foreign Corporations as Mortgagees 102...	604

Purchase by Mortgagee at his own Sale 477 Effect of Sale Under Power	617

Deed to Purchaser 480 Trustees Deed as Evidence 481 Setting Aside Sale 482 Inadequacy of Price 483 Same Laches Barring Relief 484 Costs and Ex...	618

Lis Pendens in State Court No Bar 487 Same Assignment for Creditors Under State Law 488 Jurisdiction Depending on Diverse Citizenship 489 Sam...	619

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Palavras e frases frequentes

absolute action affirming agreement amount Ass'n assignment Bank bill bond claim Connecticut Mut contract conveyance conveyed corporation court of equity covenant creditor debt secured debtor deed of trust default defendant discharge dower effect enforce entitled equity of redemption evidence execution fact foreclosure sale fraud gage gagor given to secure grantee grantor held holder homestead Illinois incumbrance instrument intended interest judgment junior mortgagee latter legal title liable lien Loan Massachusetts Mut ment mort mortgage debt mortgage given mortgaged land mortgaged premises mortgagee's mortgagor N. E. Rep Northwestern Mut note secured notice owner paid parties payment possession real estate record release right of redemption right to redeem rule satisfaction scire facias Smith sold Stat statute subrogated subsequent suit taxes thereof third person tion transaction trust deed Union Mut Union Nat usury valid void

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Informaçăo bibliográfica

Título	A Treatise on the Law of Mortgages and Deeds of Trust: Founded on the Laws and Judicial Decisions of the State of Illinois
Autor	Henry Campbell Black
Editora	Callaghan, 1903
Original de	Universidade de Harvard
Digitalizado	3 Out 2007
Número de páginas	621 páginas

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