failure after due notice of suit in any court of competent jurisdiction, to set forth his or her right, title or interest therein.25 Sec. 1067. Who estopped from denying validity of mortgage. Any person or corporation having knowingly received and accepted the benefits or any part thereof of any mortgage relating to real estate, shall be concluded thereby and estopped to deny the validity of said mortgage, or the power or authority to make and execute the same, except on the ground of fraud; but this paragraph will not apply to minors or persons of unsound mind who pay or tender back the amount of such benefit received by themselves. 26 Sec. 1068. Husband or wife may mortgage real estate not the homestead, when. The husband or wife may mortgage any real estate other than the homestead belonging to him or her, as the case may be, without being joined by the other in said mortgage.27 Sec. 1069. Mortgage not acknowledged or recorded valid as to the parties thereto Must be acknowledged and recorded to be valid as to other parties. Except as hereinafter provided herein no acknowledgment or recording are necessary to the validity of any mortgage on real estate as between the parties thereto; but no mortgage relating to real estate will be valid as against third persons unless acknowledged and recorded as herein provided, except actual notice to such third persons shall be equivalent to due acknowledgment and recording.28 25 Snyder, 1,190; Wilson, 883. 26 Snyder, 1,191; Wilson, 884. 27 Snyder, 1,193; Wilson, 886. 28 Snyder, 1,195; Wilson, 888; Hess v. Trigg, 8 Okla. 286, 51 Pac. 159. An acknowledgment to a mortgage sued on provided that "each for themselves acknowledged word the execution thereof to be Sec. 1070. Mortgages, how acknowledged. Mortgages of real property are acknowledged or proved, certified and recorded in like manner and with like effect as grants thereof.29 Sec. 1071. Recording mortgage notice to whom. The record of a mortgage, duly made, operates as notice to all subsequent purchasers and incumbrancers.30 Sec. 1072. All papers explanatory of grant or mortgage to be recorded. Every grant of real property, or of any estate therein, which appears by any other. writing to be intended as a mortgage within the meaning of this chapter, must be recorded as a mortgage; and if said grant and other writing explanatory of its true character are not recorded together at the same time and place, the grantee can derive no benefit from said record.31 Sec. 1073. Defeasance clause must be recorded. When a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, said grant is not defeated or affected as against any person other than the grantee or his heirs or devisees or persons having actual notice, unless an instrument of defeasance duly executed and acknowledged, is recorded in the office of the register of deeds of the county where the property is situated.32 Sec. 1074. Deed deemed mortgage, when. Every instrument purporting to be an absolute or qualified conveyance of real estate, or any interest therein, but intended to be defeasible or as security for the payment of 29 Snyder, 4,411; Wilson, 3,567; Dakota Code, 4,368 (1887). 30 Snyder, 4,412; Wilson, 3,568; Dakota Code, 4,368 (1887). 31 Snyder, 4,413; Wilson, 3,569; Dakota Code, 4,371 (1887). 32 Snyder, 4,414; Wilson, 3,569; Dakota Code, 4,371 (1887). money, will be deemed a mortgage and must be recorded and foreclosed as such.33 The instrument, no matter what form, when given as security for debt, will be deemed a mortgage and must be foreclosed as such.34 Sec. 1075. Parol evidence admissible to show nature of transaction. The agreement by which a deed absolute on its face is intended as security for debt, may be proved by verbal or other testimony.35 As to the principles of law in such cases, it has been well said: "It is well established that a deed absolute on its face can be shown by parol or other extrinsic evidence to have been intended as a mortgage, and that the relation of mortgagor and mortgagee being thus established all the rights and obligations incident to that relation attach to the parties. The fact once established, either by the terms or the other evidence that the grant was intended as a mortgage, the rights of the parties are to be measured by the rules of law applicable to mortgagors and mortgagees, and the conveyance remains but a mortgage until the equity of redemption is foreclosed; and the mortgagee cannot have ejectment against the mortgagor or those claiming under him, until after foreclosure. It is not material that the conveyance should be made by the debtor or by him in whom the 33 Snyder, 1,196; Wilson, 889; Balduff v. Griswold, 9 Okla. 438, 60 Pac. 223; Wagg v. Herbert, 19 Okla. 520, 92 Pac. 250; Yingling v. Redwine, 12 Okla. 64, 69 Pac. 810; Weisham v. Hocker, 7 Okla. 250, 54 Pac. 464. 34 Yingling v. Redwine, 12 Okla. 64, 69 Pac. 810. But may be surrendered and canceled so as to vest the estate unconditionally in the grantee without foreclosure or other conveyance. Seawell v. Hendricks, 4 Okla. 435, 46 Pac. 557. 35 Balduff v. Griswold, 9 Okla. 438, 60 Pac. 223; Stith v. Peckham, 4 Okla. 254, 46 Pac. 664; Weisham v. Hocker, 7 Okla. 250, 54 Pac. 464; Wagg v. Herbert, 19 Okla. 520, 92 Pac. 250. equity of redemption will exist. It is sufficient if the debtor and he who claims to occupy the position of mortgagor with the right of redemption has an interest, legal or equitable, in the premises, and the grantee of legal title has acquired such title by the act and assent of the debtor, and as security for his debt."' 36 Sec. 1076. Separate instrument with defeasance to be deemed parts of each other. Every instrument explanatory of any deed or other writing purporting to be a conveyance, but intended to be defeasible or as security for the payment of money, will be deemed a part thereof, and the same is required to be filed and recorded therewith; and unless such instruments are so filed and recorded together they and each of them will have no other effect than an unrecorded mortgage, and the recording of the principal instrument will secure no rights to the holder thereof.87 Sec. 1077. Innocent purchasers protected. Any person purchasing or taking any security against real estate in good faith and without notice from one holding under an instrument purporting to be a conveyance, but intended as security for the payment of money, and which instrument has been duly recorded without any other instrument explanatory thereof, will be protected to the extent of the purchase price paid or actual outlay occasioned, with lawful interest, against all persons except those in actual possession at the time of such purchase or outlay.38 36 Balduff v. Griswold, 9 Okla. 438, 60 Pac. 223; Cann v. Cann, 52 N. W. 251; Hassam v. Barrell, 115 Mass. 256; Franum v. Gross, 42 Cal. 169; Overstreet v. Baxter, 30 Kan. 55, 1 Pac. 825; Moore v. 37 Snyder, 1,197; Wilson, 890. Sec. 1078. Such instrument deemed an assignment. Any conveyance other than as above provided, by one holding under an instrument purporting to be a conveyance, but intended as security, will be deemed and treated as an assignment and transfer of the mortgage rights of an indebtedness due the maker thereof.* Sec. 1079. Benefits of mortgage accrue to mortgagee. All rights of a mortgagor or grantor in and to the premises described in the instrument and existing at the time or subsequently accruing, will be deemed to accrue to the benefit of the mortgagee or grantee, and be covered by his mortgage or conveyed by his deed, as the case may be.39 Sec. 1080. Mortgage follows property, when. When real property, subject to a mortgage, passes by succession or will, the successor or devisee must satisfy the mortgage out of his own property without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor that the mortgage must be otherwise paid.10 Sec. 1081. No mortgage received for record until acknowledged. No mortgage affecting real estate will be received for record or recorded unless executed and acknowledged in substantial compliance with the provisions of this act; and the recording of any such instrument not so executed and acknowledged will not be effective for any purpose. A duly recorded mortgage constitutes notice though acknowledged before the cashier of a bank of which the mortgagor is president.42 *Snyder, 1,199; Wilson, 892. 39 Snyder, 1,200; Wilson, 893. Dakota Code, 4,367 (1887). 41 Snyder, 1,208; Wilson, 901. 42 Key v. Ewing, 87 Pac. 297. |