In what order to be recorded Record to be evidence. Deeds, &c. to be first acknowledged. Clerk liable ment of commissioners to take the acknowledgment of deeds and special bail, to take affidavits to be read in courts of record, and to restrict the number of masters in chancery," passed March 24, 1818, shall be recorded in the clerk's office of said county, in books to be provided by the clerk of said county for that purpose, and that every deed, conveyance, or other writing made and executed after the said first day of July, whereby any of the said lands may be affected in law or equity, shall be adjudg ed fraudulent and void againt any subsequent bona fide purchaser or mortgagee for a valuable consideration, unless the same shall be recorded as by this act is directed, before the recording the deed or conveyance, under which such subsequent purchaser or mortgagee shall claim. § 2. And be it further enacted, That every deed, conveyance, or other writing, of and concerning any lands or real estate within the said county, which shall be entitled to be recorded as aforesaid, shall be recorded in the order, and at the time when the same shall be delivered to the clerk for that purpose, and shall be considered as recorded from the time it was so delivered; and the said clerk shall make an entry in the margin, or at the foot of the record thereof, of the day, month, year, and the time of the day when the same is to be recorded, and endorse, and sign a certificate on such deed, conveyance, or writing, of the particular time when, and the book or page in which the same is so recorded; and that every deed, conveyance, or writing, so acknowledged or proved, whether the same be recorded or not, or the record thereof, or a transcript of such record, certified by the said clerk, under the seal of the court of common pleas of the county of Ulster aforesaid, may be read in evidence in any court of this state, without further proof thereof. §3. And be it further enacted, That it shall not be lawful for the said clerk to record any deed, conveyance or writing above mentioned, unless the same shall be acknowledged or proved according to law, and which acknowledgment or proof shall be recorded therewith. §4. And be it further enacted, That if the said clerk, or any deputy to damages. of the said clerk, shall be guilty of any neglect, misdemeanor, or fraudulent practice in the execution of the duties prescribed by this act, he, and every of them, in every such case, shall be liable to pay damages, with costs of suit, to any party injured thereby, to be recovered by action, stating such neglect, misdemeanor, or fraudulent practice, in any court of record of this state. Act extended to every county. § 5. And be it further enacted, That all the provisions of this act shall extend to, and be in force in the several counties of this state, in which titles to real estate are not now by law directed to be recorded: Provided, That in the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware, and Schenectady, it shall not be necessary to record leases for life or lives, or for years, or original leases in fee; any thing in this act, or any former act, to the contrary notwithstanding: And further, That all damages hereafter to be recovered against any clerk or deputy clerk of any county in this state, for any neglect in the execution of the duties of their office, shall be single damages, as provided for by this act: And that all the provisions of former laws inconsistent with this act, be, and the same are hereby repealed: And provided further, That it shall not be necessary to record any contract for lands, or lease, for any term less than three years, in any county of this state, any law to the contrary thereof notwithstanding. Laws relating to Mortgages. An act concerning mortgages. Passed March 19, 1813.1 § 1. Be it enacted by the People of the State of New-York, represented in Mortgages to Senate and Assembly, That the clerks of the respective counties in this bo registered. state, from time to time, shall provide fit and convenient books for the registering of all mortgages of any lands, tenements or hereditaments, situated within their respective counties; in which register shall be entered the names of the mortgagors and mortgagees, the dates of the respective mortgages, the mortgage money, the time or times when payable, the description and boundaries of the lands, tenements or hereditaments, mortgaged, the times when such mortgages are registered, and a minute of the certificate of the proof or acknowledgment thereof herein after mentioned; to which register all persons whomsoever at proper seasons may have recourse. And it is hereby made the further duty of the clerks of the respective counties in this state, when registering a mortgage, also to record at length the special power of sale, if any be contained therein, for which service the said clerks are hereby respectively allowed to demand and receive, over and above the fee allowed by law for registering a mortgage, the like rate of compensation which is allowed them for recording a deed; and that if any clerk shall neglect or refuse to do the duty required of him by this act, he shall answer to the party injured all damages which shall happen by reason of such neglect or refusal. are several tered to have § 2. And be it further enacted, That every mortgage being proved or Where there acknowledged according to law, and such proof or acknowledgment cer- mortgages, tified in like manner, may be registered as aforesaid in the city or county the first regisin which the lands, tenements or hereditaments so mortgaged are situated: preference. and in case of several mortgages of the same premises, or any part thereof, the mortgage or mortgages which shall be first registered as aforesaid, shall have preference in all courts of law and equity according to the times of the registry of such mortgages respectively: Provided, The mortgage or mortgages so to be preferred, be made bona fide and upon good and valuable consideration: And further, That no mortgage nor any deed, conveyance, or writing in the nature of a mortgage, shall defeat or prejudice the title or interest of any bona fide purchaser of any lands, tenements or hereditaments, unless the same shall have been duly registered as aforesaid. ed as mort § 3. And be it further enacted, That every deed conveying a real es- Certain deeds tate, which by any other instrument or writing shall appear to have been to be registerintended only as a security in the nature of a mortgage, though it be an gages. absolute conveyance in terms, shall be considered as a mortgage and be deemed and adjudged to be liable to be registered as other mortgages are by virtue of this act; and that the person or persons for whose benefit such deed shall be made, shall not have the advantages given by this act to mortgages, unless every instrument and writing operating as a defeasance of the same, or explanatory of its being designed to have the effect only of a mortgage or conditional deed, be also therewith registered in substance as in case of a mortgage. § 4. And be it further enacted, That whenever any mortgage so regis- Discharged tered, shall be redeemed or discharged, and a certificate thereof signed mortgages to be registered by the mortgagee or mortgagees, his or their executors, administrators or assigns, in the presence of two or more witnesses, and proved or acknowledged in the same manner as the execution of such mortgage is above directed to be proved or acknowledged, and such proof or acknowledg (1) 1R. L. p. 372; S. & L. v. 2, 19, 203; V. S. v. 1, 324; J. & V. v. 1, Appendix 9; Ib. v. 2, 207; Gr. v. 2, 100; K. & R. v. 1, 480; W. v. 4, 615. No sale under mortgage ed. ment also certified in like manner, be produced to the clerk of the city or county in which the same is registered, such clerk shall enter in the said book or register of mortgages, a minute of such discharge and certificate, which minute shall be deemed and taken to be a full and absolute bar to the first entry of such mortgage or mortgages; and it shall not be necessary for the said clerk on entering such minute or on registering any mortgage as aforesaid, to record or register at length the certificate of the proof or acknowledgment thereof. § 5. And be it further enacted, That no sale of any lands, tenements to be defeat or hereditaments, made or to be made in due form of law by any mortgagee or others thereunto authorised by special power for that purpose, from any person entitled to the equity of redemption therein, shall be defeated to the prejudice of any bona fide purchaser thereof, in favor or for the benefit of any person claiming such redemption in equity: Provided, That nothing herein contained shall be construed to prejudice any other mortgagee of the same premises or any part thereof, whose title accrued prior to such sale, or any creditor to whom the mortgaged premises or any part thereof were before bound by any judgment at law or decree in equity: And provided also, That nothing herein contained shall operate to secure any such purchaser under any power, executed since the nineteenth day of March, in the year one thousand seven hundred and seventy-five, or hereafter to be executed for the purposes of such sale, unless the party executing the same be of the age of at least twenty-five years. All sales under mortgapublic ven ges to be at due. Proof of notice of sale § 6. And be it further enacted, That all such powers to mortgagees, made or to be made, authorising sales in fee, shall be acknowledged or proved and recorded, together with the certificate of such proof or acknowledgment, as deeds and conveyances usually are, before the conveyances for the sale be executed; and every such sale shall be at public auction or vendue, and public notice shall be given thereof by advertisements, one copy thereof to be inserted and continued at least once a week for six successive months previous to the sale, in one of the newspapers published in the county where the mortgaged premises lie; and if no newspaper be published in the said county, then and in that case, the notice aforesaid shall be published in one of the newspapers in the county nearest to the mortgaged premises where a newspaper is printed; and another copy thereof to be fixed upon the outward door of the court-house of the city or county in which the said premises or the greater part thereof are situate. § 7. And be it further enacted, That in every case where the sale of how made. mortgaged premises in virtue of a special power for that purpose contained in the mortgage, has taken place or may hereafter take place, an affidavit stating the publishing of the advertisement of sale in a newspaper, and made by the printer of the newspaper, and also an affidavit stating the fixing of a copy of the advertisement upon the outward door of the courthouse, and made by the person who fixed the same upon the said door; and also an affidavit stating the circumstances respecting the sale of the mortgaged premises, and made by the person who acted as auctioneer at the sale, and certified and recorded as hereinafter directed, or the record of either of the said affidavits, shall be received in every court of law or equity in this state, as prima facie evidence of the facts in such affidavit set forth. Affidavits be- § 8. And be it further enacted, That the person making either of the said affidavits shall make the same before one of the justices of the supreme court of this state, or a master in chancery for this state, or before one of the judges of the court of common pleas of the county in which the mortgaged premises shall lie; and such justice, master in chancery or fore whom made. judge, is hereby required to take the said affidavit and to subscribe his name to a certificate underneath the same, purporting that the person making the affidavit had appeared before him and made oath to the same. § 9. And be it further enacted, That in case application shall be made Affidavits to to the clerk of any county, where the mortgaged premises shall lie, to be recorded. record either of the said affidavits, certified and subscribed as aforesaid, then and in such case the said clerk is hereby required to record in his register of mortgages, the said affidavit at full length, together with the certificate of the justice, master in chancery, or judge, annexed to the same; for which service the said clerk is hereby allowed to demand and receive the like rate of compensation which is allowed him for recording a deed. may purchase § 10. And be it further enacted, That no title to mortgaged premises Mortgagee derived from any sale made in virtue of a special power for that purpose. in the mortgage contained, shall be questioned, impeached or defeated, either at law or in equity, by reason that the mortgaged premises were purchased in by the mortgagee or his or her assignee, or by his, her or their legal representatives, or for his, her or their benefit or account: Provided always, That the sale was in every other respect regular, fair, and with good faith. registered in § 11. And be it further enacted, That all mortgages already executed, Mortgages to or which may hereafter be executed to the people of this state, may be re- the state to bo gistered in the office of the secretary of this state, the same being first pro- the secretaven in the manner directed by this act, and every such registry shall have ry's office. the like force and effect as if the same had been registered in the city or county where the lands described in every such mortgage is situated. nish books. § 12. And be it further enacted, That the secretary of this state shall secretary of procure fit and convenient books for the registering of the mortgages of state to furlands, tenements and hereditaments, executed to the people of this state : and in registering every such mortgage, the said secretary shall conform to the directions contained in the first section of this act. be recorded. § 13. And be it further enacted, That the certificate of the treasurer of Treasurer's this state, for the time being, countersigned by the comptroller, setting certificate to forth that the whole principal and interest due on any of the said mortgages are paid, shall be a sufficient warrant to the secretary, or to any of the clerks of counties within this state, to cancel of record any of the said mortgages which may have been recorded in their respective offices. be foreclosed § 14. And be it further enacted, That all mortgages already executed or Mortgage to hereafter to be executed to the people of this state, may be foreclosed, by the state may giving notice in the manner prescribed by this act; and every foreclosure made as aforesaid shall be an absolute bar of the equity of redemption, and shall have the like effect, as if any of the said mortgages had been foreclosed in the court of chancery by a decree against all parties in in *terest. chase money § 15. And be it further enacted, That whenever lands are sold and con- Mortgage to veyed, and a mortgage is given by the purchaser at the same time to se- secure purcure the payment of the purchase money, such mortgage shall be prefer- takes preferred to any previous judgment which may have been obtained against such ence to judgpurchaser. An act to amend an act, entitled "An act concerning mortgages." ment. § 1. Be it enacted by the People of the State of New-York, represented in Duty of Senate and Assembly, That the clerks of the respective counties in this clerks of counties. Priority of mortgages. Defeasances ed. state, from time to time, shall provide fit and convenient books for the recording of all mortgages of any lands, tenements or hereditaments, situated within their respective counties; and every mortgage, after being acknowledged or proved according to law, shall be entitled to be recorded, together with the certificate of the acknowledgment or proof thereof, at full length, in the order, and as of the time when the same shall be delivered to any clerk for that purpose, and shall be considered as recorded, from the time it shall be so delivered; and the said clerk shall make an entry in the margin of the record thereof, of the day, month and year, and time of the day when the same is so recorded, and endorse and sign a certificate on such mortgage, of the particular time when, and the book and page in which the same is so recorded; and that every mortgage so acknowledged or proved, whether the same be recorded or not, or the record thereof, or a transcript of such record, certified by the clerk, in whose office the same may be recorded, under the seal of the court of common pleas of the county whereof he is clerk, may be read in evidence in any court of this state, without further proof. § 2. And be it further enacted, That in case of several mortgages of the same premises, or any part thereof, the mortgage or mortgages which shall be first recorded as aforesaid, shall have preference in all courts of law and equity, according to the times of the recording of such mortgages respectively Provided, That the mortgage or mortgages so to be preferred, be made bona fide, and upon good and valuable consideration : And further, That no mortgage, nor any deed, conveyance, or writing, in the nature of a mortgage, shall defeat or prejudice the title or interest of any bona fide purchaser of any lands, tenements or hereditaments, unless the same shall have been duly recorded as aforesaid. § 3. And be it further enacted, That every deed, conveying a real esto be record- tate, which by any other instrument or writing, shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage; and that the person or persons for whose benefit such deed shall be made, shall not have any benefit or advantage from the recording thereof, unless every instrument and writing, operating as a defeasance of the same, or explanatory of its being designed to have the effect only of a mortgage, or conditional deed, be also therewith recorded. Discharges to § 4. And be it further enacted, That whenever any mortgage so rebe recorded. corded, shall be redeemed or discharged, the record thereof may be barred and cancelled in the same manner, upon the like authority, and with the like effect, as the registry of mortgages may be barred and cancelled, by virtue of the fourth section of the act hereby amended. Fees. Time when § 5. And be it further enacted, That the clerks of the several counties of this state, shall be allowed to demand and receive, for recording mortgages, the same compensation now allowed by law for recording deeds, and no more. § 6. And be it further enacted, That this act shall take effect, from and act takes ef after the first day of October next; and from and after that day, the first, fect. eleventh, and twelfth sections of the act hereby amended, and so much of the other parts of the said act, as is inconsistent with this act, shall be and hereby are repealed. Mortgage counties. §7. And be it further enacted, That all mortgage sales, after the first sales in what day of January next, shall be made in the county where the mortgaged premises are situate: Provided, That nothing in this section contained, shall extend to any sales to be made by or on behalf of the people of this state: And provided further, That where the lands described in any mortgage, are or shall be situated in more than one county, in such case |