No mortgage will be received for record or recorded unless plainly written or printed, or partly written and partly printed in the English language.43 Sec. 1082. Duty of register of deeds when mortgage is presented for record. The register of deeds is required, whenever an instrument is presented to him for record, to immediately note on the instrument the year, the month, day, hour and minute of receiving the same, and the date of the record of such instrument will be from the date of the filing; he is required to then enter the same upon the receiving book, making all the entries in the appropriate columns as provided by statute, and as soon thereafter as practicable, record said instrument in the proper record, enter it upon the proper indexes, and over his signature and seal note the book and page on which said instrument is recorded.* Sec. 1083. Mistake of register of deeds does not lose priority for the instrument. Under the terms of the statute in the preceding paragraph, defining the duties of the recording officer, whenever an instrument is presented for record, any mistake or neglect of his in recording the instrument does not affect the mortgagee; for if the law were otherwise the mortgagee would be required to exercise supervisory control over such officer." Sec. 1084. Mortgage void for want of consideration, when. Every conveyance of real estate or any interest therein, and every mortgage or other instrument in any way affecting the same, made without a fair and valuable consideration, or made in bad faith, or for the purpose of hindering, delaying 43 Snyder, 1,210; Wilson, 903. 44 Snyder, 1,740; Wilson, 1,284. 45 Covington v. Fisher, 22 Okla. 207, 97 Pac. 615; Poplin v. Wendell, 27 Kan. 138; Castrelero v. United States, 2 Black, 17-97, 360. or defrauding creditors, will be void as against all persons to whom the maker is at the time indebted or under any legal liability.40 Sec. 1085. Assignment of non-negotiable note secured by mortgage, effective of. Where the makers of a non-negotiable note have neither actual nor constructive notice of the assignment of the note and coupons, or the mortgage securing the same, proof or the payment of the note and coupons to the payee in accordance with the terms and tenor of the note and mortgage, is a complete defense to an action upon the same.17 Sec. 1086. Statutory form for mortgage. A mortgage upon real estate may be substantially in the following form, to-wit: of KNOW ALL MEN BY THESE PRESENTS, that County, in the of part, have mortgaged and hereby mortgage to of and -, part― of the first of part of the second part, the follow with all improve County, ments thereon and appurtenances thereunto belonging, and warrant the title to the same. This mortgage is given to secure the principal sum of $ with interest thereon at the rate of annually from per cent. per annum, according to the terms certain promissory note- described as follows, to-wit: payable of Dated this day of 19-48 46 Snyder, 1,213; Wilson, 906; Alton v. Staten, 19 Okla. 252, 91 Pac. 892. 47 Randall V. Glendenning, 19 Okla. 475, 92 Pac. 160; Dickerson v. Higgins, 15 Okla. 588, 82 Pac. 649. 48 Snyder, 1,224; Wilson, 916. Sec. 1087. Another statutory form for mortgage. A mortgage of real property may be made in substantially the following form: That the mortgagor mortgages to the mortgagee (Here describe the property) as security for the payment to him of dollars, on or before the day of in the with interest thereon (or as security for the pay year Sec. 1088. What is a good and valid mortgage-Waiver of appraisement. Every instrument substantially the same as above in Section 1086 will be deemed a good and valid mortgage, with all contracts and covenants essential to protect the rights of the holder thereof; but any other lawful contract embodied therein will be binding upon the parties thereto; and when the words, "Waive appraisement," are written or printed therein, the premises mortgaged must be sold without appraisement, in case of foreclosure and sale thereunder, and in such case no order for such sale will be allowed to issue until six months after the date of judgment.50 Sec. 1089. The manner of the discharge of a mortgage. A recorded mortgage may be discharged by entry in the margin of the record thereof, signed by the mortgagee or his personal representative or assignee, acknowledging the satisfaction of the mortgage, in the presence of the register, who must certify the acknowledgment in form substantially as 49 Snyder, 4,409; Wilson, 3,565; Dakota Code, 4,366 (1887). 50 Snyder, 1,225; Wilson, 917. follows: "Signed and acknowledged before me this in the year Sec. 1090. Discharge noted by recording officer, when. A recorded mortgage, if not discharged as provided in the preceding paragraph, must be discharged upon the record by the officer having custody thereof, on the presentation to him of a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified as is required for transfers, stating that the mortgage has been paid or otherwise satisfied and discharged.52 Sec. 1091. Certificate of discharge recorded, how. A certificate of discharge of a mortgage and proof of the acknowledgment thereof, must be recorded at length, and a reference made in the record to the book and page where the mortgage is recorded, and in the minute of the discharge made upon the record of the mortgage, to the book and page where the discharge is recorded.53 Sec. 1092. Mortgagee to make certificate of discharge, when. When any mortgage has been satisfied, the mortgagee or his assignee must, immediately on demand of the mortgagor, execute and deliver to him a certificate of the discharge thereof, and must at the expense of the mortgagor acknowledge the execution thereof so as to entitle it to be recorded, or he must enter satisfaction or cause satisfaction of such mortgage to be entered of record; and any mortgagee or assignee of such mortgagee who refuse to execute and deliver 51 Snyder, 4,405; Wilson, 3,561; Dakota Code, 4,362 (1887); California, 2,938; Kerr's Code, identical; Beal v. Stevens, 72 Cal. 451, 14 Pac. 186. 52 Snyder, 4,406; Wilson, 3,562; Dakota Code, 4,363 (1887). 53 Snyder, 4,407; Wilson, 3,653. to the mortgagor a certificate of discharge and to acknowledge the execution thereof, or to enter satisfaction or cause satisfaction to be entered of the mortgage as provided in this chapter, is liable to the mortgagor or his grantee or heirs, for all damages which he or they may sustain by reason of such refusal, and will also forfeit to him or them the sum of one hundred dollars.54 Sec. 1093. Note and the mortgage construed together. Where there are a series of notes, secured by one mortgage, and the notes contain no provision as to a foreclosure in case default is made either in the payment of any one note or the interest thereof, and the mortgage contains a stipulation that if there is a default in the payment of the interest, or of any note when due, the stipulation in the mortgage will control. The same rule holds where the mortgage contains a stipulation that in default of the payment of interest, any one of a series of notes, when due, the nonpayment of taxes or assessments or in case of insurance. Indeed, it has been held that a note and mortgage securing the same, when executed contemporaneously, are to be construed as constituting one contract, and the stipulations of the mortgage with reference to the maturity of the debt, because of a failure to pay interest, when due, will be given effect so as to cause the same to become due and payable before the time expressed on its face."5 54 Snyder, 4,408; Wilson, 3,564; Dakota Code, 4,365 (1887). The statute is to be strictly complied with. Peckham v. Van Bergin, 10 N. D. 43, 84 N. W. 566. See, under the statute, Jones v. Fidelity, 7 S. D. 122, 63 N. W. 553; Mader v. Plano, 17 S. D. 553, 97 N. W. 843. 55 Eveans v. Baker, 5 Kan. App. 68, 47 Pac. 314; Stanclift v. Norton, 11 Kan. 218; Elwood v. Woolcot, 32 Kan. 526, 4 Pac. 1,056; Association v. Moore, 4 Neb. 686, 59 N. W. 115. |