[2 R. S. 1852, p. 239. In force May 6, 1853.]

1099. (1086.) Possession of premises.-1. Unless a mortgage specially provide that the mortgagee shall have possession of the mortgaged premises, he shall not be entitled to the same.

This section applies only to mortgages of real estate. Ind. 595.

Broadhead v. McKay, 46

This section is applicable to deeds absolute on their face, but which are in fact only mortgages. Wheeler v. Ruston, 19 Ind. 334; Smith v. Parks, 22 Ind. 59.

If an absolute deed is made, which is, in fact, a mortgage, the grantor may recover possession of the lands from one who does not claim under the grantee. Parker v. Hubble, 75 Ind. 580.

1100. (1087.) How construed-Remedy.-2. No mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured, so as to enable the mortgagee, his assignees, or representatives to maintain an action for the recovery of such sum; and where there is no express covenant contained in the mortgage for such payment, and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage.

If there be no agreement, in or out of the mortgage, to pay the mortgage debt, the remedy is confined to the mortgaged property. Fletcher v. Holmes, 25 Ind. 458. If there is no covenant in a mortgage to pay a debt, the mortgage can not be enforced after the debt is barred. Lilly v. Dunn, 96 Ind. 220.

1101. (1088.) Foreclosure before sale.-3. No mortgage of real estate, or instrument operating as or having the legal effect of a mortgage, hereafter executed, shall authorize the mortgagee to sell the mortgaged premises, but every such sale shall be made under a judicial proceeding.

This section forbids a power of sale in the mortgage. A later act (June 17, 1862) authorizes a power of sale in trust mortgages. Eaton, etc., R. R. Co. v. Hunt, 20 Ind. 457.

The mortgagee is not forbidden to act as agent for the sale of the lands mortgaged where the agency is not created by the mortgage. Farley v. Eller, 29 Ind. 322.

1102. (1089.) Purchase-money-Priority.-4. A mortgage granted by a purchaser to secure purchase-money shall have preference over a prior judgment against such purchaser.

A vendor of lands who neglects to take a mortgage to secure purchase-money until

after the execution of a mortgage thereon to a third person, for value, without notice, will be postponed to the latter. Houston v. Houston, 67 Ind. 276.

The taking of a mortgage for purchase-money is a waiver of the equitable lien of the vendor. Harris v. Harlan, 14 Ind. 439; Richards v. McPherson, 74 Ind. 158.

1103. (1090.) Entry of satisfaction-Effect.-5. Every mortgagee of lands whose mortgage has been recorded, having received full payment of the sum or sums of money, therein specified, from the mortgagor, shall, at the request of such mortgagor, enter satisfaction on the margin or other proper place in the record of such mortgage, which shall operate as a complete release and discharge thereof.

The holder of a mortgage is not bound to enter satisfaction thereof until it is fully paid. Storey v. Krewson, 55 Ind. 397.

An entry of satisfaction by a mortgagee after he has assigned the debt secured, is void. Reeves v. Hayes, 95 Ind. 521.

When an entry of satisfaction is procured by fraud such entry may be set aside. Reagan v. Hadley, 57 Ind. 509; Burton v. Reagan, 75 Ind. 77.

In entering satisfaction on the margin of the record it is not necessary to describe the lands. Bryant v. Richardson, 126 Ind. 145.

An entry that signifies that the mortgage has been fully paid is sufficient. Richards v. McPherson, 74 Ind. 158.

As between the parties, it may be set up that the entry of satisfaction was without consideration. Harris v. Boone, 69 Ind. 300.

Courts on decreeing that a mortgage should be entered satisfied may direct the clerk to make the entry. Anderson Association v. Thompson, 87 Ind. 278.

An entry of satisfaction made by order of court only affects the parties to the proceeding. Dixon v. Hunter, 57 Ind. 278.

The administrator of the estate of a mortgagee may enter satisfaction of a mortgage. Connecticut Co. v. Talbot, 113 Ind. 373.

If the mortgage becomes inoperative by the death of the mortgagee the mortgagor may have the same declared satisfied. Murdock v. Cox, 118 Ind. 266.

After entry of satisfaction the record is no longer constructive notice to parties who have no notice that the entry was improperly procured. Etzler v. Evans, 61 Ind. 56; Bank v. Butterfield, 100 Ind. 229.

1104. (1091.) Certificate of satisfaction-Record.-6. Where such mortgage has been paid and satisfied by the mortgagor, he may take a certificate thereof, duly acknowledged by the mortgagee or his lawful agent, as herein required for the acknowledgment of conveyances, to entitle the same to be recorded; which certificate and acknowledgment shall be recorded by the recorder in whose office such mortgage is recorded, with a reference to the book and page containing the record of the mortgage aforesaid; and such recorded certificate shall forever discharge and release the mortgagor from such mortgage, and forever bar all suits and actions thereon.

The release of the mortgage will not be invalid on account of a misdescription of the property if the mortgage is otherwise sufficiently identified. Bryant v. Richardson, 126 Ind. 145.

[Acts 1893, p. 64. In force May 18, 1893.]

1105. Refusal to satisfy-Penalty.-1. That any person being the owner or holder of any mortgage recorded in the state of Indiana, or

the officer of any bank, loan association or other corporation, being the owner or holder of any mortgage so recorded, or any administrator, executor, guardian, trustee or other person whose duty it shall be to release any mortgage so recorded, who shall refuse, neglect or fail to release such mortgage of record when the debt or obligation which such mortgage was made to secure shall have been paid or discharged, and he shall have been requested to release the same, shall forfeit and pay to the mortgagor or person having the right to demand the release of such mortgage, the sum of twenty-five dollars ($25), which sum may be recovered by suit in any court of competent jurisdiction, together with reasonable attorney's fees incurred in the collection of said penalty.

[2 R. S. 1852, p. 239. In force May 6, 1853.]

1106. (1092.) Foreclosures by state.-8. Nothing in this act shall affect any provisions made by law in relation to the foreclosure of mortgages to the state of Indiana, so far as the same conflict with the provisions of this act.

[1877, p. 99. In force July 2, 1877.]

1107. (1093.) Assignments, how made.-7. Any mortgage of record, or any part thereof, may be assigned by the mortgagee, or any assignee thereof, either by an assignment entered on the margin of such record, signed by the person making the assignment and attested by the recorder, or by a separate instrument executed and acknowledged before any person authorized to take acknowledgments, and recorded on such margin, or in the mortgage records of the county, in which case such assignment shall be noted in such margin by the recorder, by reference to the book and page where such assignment is recorded. And after such entry is made of record, the mortgagor and all other persons shall be bound thereby, and the same shall be deemed a public record. And any assignee or his personal representative may enter satisfaction or release of the mortgage, or the part thereof held by him of record as aforesaid.

Prior to the adoption of this section parties lost none of their rights by failing to have assignments of mortgages recorded. Hasselman v. McKernan, 50 Ind. 441; Dixon v. Hunter, 57 Ind. 278; Reeves v. Hayes, 95 Ind. 521.

On the adoption of this section it applied to all mortgages then of record and theretofore equitably assigned. Connecticut Co. v. Talbot, 113 Ind. 373.

If the assignee fails to have his assignment recorded persons may act on a release of the mortgage executed by the mortgagee. Connecticut Co. v. Talbot, 113 Ind. 373. The assignee of a mortgage must take notice of all mortgages of record and of the rights of the parties thereunder. Brower v. Witmeyer, 121 Ind. 83. An indemnity mortgage may be assigned. Carper v. Munger, 62 Ind. 481. An assignment of a debt secured by mortgage carries with it the mortgage security. Garrett v. Puckett, 15 Ind. 485; Sample v. Row 24 Ind. 208; Parkhurst v. Watertown Co., 107 Ind. 594.

An assignment indorsed upon a mortgage does not transfer the legal title to the notes secured. French v. Turner, 15 Ind. 59.

The assignment of a mortgage without a transfer of the debt secured conveys no right. Johnson v. Cornett, 29 Ind. 59; Hubbard v. Harrison, 38 Ind. 323.

The assignee of a mortgage given to secure commercial paper takes the mortgage like the paper, if for value, before maturity, free from all the equities which might have constituted a defense. Gabbert v. Schwartz, 69 Ind. 450.

1108. (1094.) Parties-Effect of sale-Redemption.-2. And in a suit to foreclose said mortgage, it shall be sufficient to make the mortgagee, or the assignee shown by said record to hold an interest therein, defendants. And all persons failing to cause assignments to them to be made or put of record in the manner aforesaid, unless they cause themselves to be made parties pending the action, shall be bound by such decree as may be rendered, the same as if they had been parties to the suit. And any purchaser at judicial sale of the mortgaged premises, or any part thereof, under such decree, or claiming title under the same, buying without actual notice of any assignment not thus of record, or of the transfer of any note, the holder whereof was not a party to the action, shall hold the said premises, so purchased, free and discharged of such lien: Provided, however, That any assignee or transferee may redeem said premises, like any other creditor, during the period of one year allowed by statute after such sales.

Innocent purchasers are protected against unrecorded assignments of mortgages. Connecticut Co. v. Talbot, 113 Ind. 373.

As to the rights of mortgagees to redeem from sales of the mortgaged property, see McKernan v. Neff, 43 Ind. 503; Hosford v. Johnson, 74 Ind. 479; Catterlin v. Armstrong, 79 Ind. 514; Johnson v. Hosford, 110 Ind. 572; Gaskell v. Viquesney, 122 Ind. 244.

[1881 S., p. 240. In force September 19, 1881.]

1109. (1095.) Foreclosure.-712. When default is made in the performance of any condition contained in a mortgage, the mortgagee or his assigns may proceed, in the circuit court of the county where the land lies, to foreclose the equity of redemption contained in the mortgage.

A mere indemnity mortgage can not be foreclosed until the mortgagee has been injured by his suretyship. Ellis v. Martin, 7 Ind. 652; Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443.

If an indemnity mortgagor promises to pay a debt when due, and he fails to do so, the person indemnified may foreclose the mortgage before paying the debt. Gunel v. Cue, 72 Ind. 34; Malott v. Goff, 96 Ind. 496; Reynolds v. Shirk, 98 Ind. 480.

Mortgages may be foreclosed as each installment of the debt secured becomes due. Hunt v. Harding, 11 Ind. 245; Crouse v. Holman, 19 Ind. 30.

If a mortgage provides that on failure to perform an act the whole debt secured shall become due, the mortgage may be foreclosed on failure to perform the act. Andrews v. Jones, 3 Blkf. 440; Jones v. Schulmeyer, 39 Ind. 119; Buchanan v. Berkshire Co., 96 Ind. 510; Moore v. Sargent, 112 Ind. 484.

The debt secured, or some part thereof, must be due before a foreclosure can be had. Trayser v. Trustees, 39 Ind. 556.

If a mortgage is foreclosed on the note last due, and a sale is had, there can be no foreclosure as to prior notes as against a purchaser not having notice that such notes were unpaid, but otherwise if he has notice. Minor v. Hill, 58 Ind. 176; Hill v. Minor,

79 Ind. 48.

There must be debt which can be enforced before a mortgage can be foreclosed. Brick v. Scott, 47 Ind. 299; Gregory v. Van Voorst, 85 Ind. 108; Orr v. White, 106 Ind. 341; Greenman v. Fox, 54 Ind. 267; Lilly v. Dunn, 96 Ind. 220.

A mortgage may be foreclosed in an attachment suit. Sharts v. Awalt, 73 Ind. 304. The taking of judgment upon the debt secured does not prevent a subsequent foreclosure of the mortgage. Holmes v. Hinkle, 63 Ind. 518.

The owner of the legal title to lands may maintain a proceeding in the nature of a strict foreclosure against lienholders or persons having a right of redemption. Jefferson v. Coleman, 110 Ind. 515; Loeb v. Tinkler, 124 Ind. 331.

A mortgage given by a principal to his surety to indemnify him may be foreclosed by the creditor. Loehr v. Colborn, 92 Ind. 24; Mitchell v. Fisher, 94 Ind. 108.

All owners of the fee of the mortgaged premises are necessary parties to the action. Day v. Patterson, 18 Ind. 114; Curtis v. Gooding, 99 Ind. 45; Petry v. Ambrosher, 100 Ind. 510; Pauley v. Cauthorn, 101 Ind. 91; Daugherty v. Deardorf, 107 Ind. 527; Goodell v. Starr, 127 Ind. 198; Watts v. Julian, 122 Ind. 124.

If the mortgagor has conveyed the property, he is not a necessary party unless a personal judgment is desired against him. Stevens v. Campbell, 21 Ind. 471; West v. Miller, 125 Ind. 70; Petry v. Ambrosher, 100 Ind. 510.

All persons claiming liens on the lands are proper parties to suits of foreclosure. Pattison v. Shaw, 6 Ind. 377; Harris v. Harlan, 14 Ind. 439; Martin v. Noble, 29 Ind. 216; Stockwell v. State, ex rel., 101 Ind. 1.

If junior incumbrancers are not made parties their rights are not affected. Murdock v. Ford, 17 Ind. 52; Holmes v. Bybee, 34 Ind. 262; McKernan v. Neff, 43 Ind. 503; Hosford v. Johnson, 74 Ind. 479; Catterlin v. Armstrong, 79 Ind. 514.

The person equitably entitled to the money to be realized should be a party to the suit. Merritt v. Wells, 18 Ind. 171.

The assignee in bankruptcy of the mortgagor is a necessary party. Griffin v. Hodshire, 119 Ind. 235.

If a mortgage is given to secure the claims of several persons, all such persons should be parties. Goodall v. Mopley, 45 Ind. 355; Cain v. Hanna, 63 Ind. 408.

If an assignee sues to foreclose and the assignment is not in writing, the assignor should be a party. Nichol v. Henry, 89 Ind. 54.

The wife of a purchaser of mortgaged property is a proper party to a suit of foreclosure. Watt v. Alvord, 25 Ind. 533.

But the wife of a mortgagor is not a necessary party to a suit to foreclose a mortgage executed by the husband alone. Fletcher v. Holmes, 32 Ind. 497.

There need be but one paragraph of a complaint to foreclose a mortgage, although there are a number of notes. Hannon v. Hilliard, 101 Ind. 310.

The complaint should contain a definite description of the mortgaged premises. Magee v. Sanderson, 10 Ind. 261; Nolte v. Libbert, 34 Ind. 163; Bowen v. Wood, 35 Ind. 268; Rapp v. Thie, 61 Ind. 372; Bayless v. Glenn, 72 Ind. 5.

A complaint to foreclose against the mortgagor, or a purchaser subject to the mortgage, need not allege that the mortgage was recorded. Garrett v. Puckett, 15 Ind. 485; Culph v. Phillips, 17 Ind. 209; Mann v. State, ex rel., 116 Ind. 383.

But as to subsequent purchasers, it should be alleged that the mortgage was recorded, or that the purchaser had notice thereof. Peru Co. v. Hendricks, 18 Ind. 11; Faulkner v. Overturf, 49 Ind. 265; Stockwell v. State, ex rel., 101 Ind. 1.

When the lands mortgaged lie in more than one county, the court of either of the counties has jurisdiction. Holmes v. Taylor, 48 Ind. 169.

An action to foreclose a mortgage may be maintained at any time within twenty years after the action accrues. Catterlin v. Armstrong, 101 Ind. 258; Leonard v. Binford, 122 Ind. 200.

The mortgage may be continued in force by an agreement therein to pay the debt,