ample, a period even longer than a year is granted. If there be several defendants, as the mortgagor and one or more subsequent mortgagees, the different periods of redemption limited for the benefit of each are fixed upon, substantially as follows:

1st. The mortgagor, as the party ultimately liable to all parties, is to pay or perform on or before a fixed day; then, if he shall fail to perform, the party next in the order of final liability, has a few days longer; and so on, giving each party a few days longer than the one next behind him in interest. If none of the parties should perform on or before the day finally limited, the estate of the mortgagee becomes absolute.

In Massachusetts, and perhaps in some of the other States, foreclosure may be effected by possession, either actual, or recorded and constructive, for a time limited by statute. In Massachusetts, the time limited is three years. The mortgagee may make an open and peaceable entry upon the premises, and take and hold actual possession thereof for three years; or he may make such entry in the presence of two witnesses, who sign a certificate thereof, to be written on the original mortgage deed; or he may take an acknowledg ment from the mortgagor that he has made such entry, and upon recording such certificate or acknowledgment within thirty days, the period of foreclosure begins to run therefrom. If the mortgagee takes and retains actual possession, he is bound to keep an account of the rents and profits and apply them upon the mortgage debt; and he will be liable, upon such accounting, for such an amount of rents and profits as, with reasonable diligence, he might have received. If the mortgagee is unable to make an open and peaceable entry, he may bring his action to recover possession as mortgagee; and if the debt is then due, will be entitled to a conditional judgment that actual possession of the land be given him by the sheriff, unless the debt, interest, and costs, be paid to him within sixty days after judgment. In such case, the period of three years actual possession required begins to run from the time of actual delivery of the possession by the sheriff.

The mortgagee has three modes for enforcing his remedies for collection of the debt. He may bring personal action of assumpsit or contract for the money, an action at law for possession of the premises, or a bill in equity to foreclose; and he may pursue them all simultaneously, or each successively, as he may prefer. A final remedy in one form, will of course, bar further proceedings in each of the others.

While the mortgagor remains in possession, he may treat the estate as if he were the owner thereof in every respect, If he except that he must not commit waste thereupon. should attempt this, by cutting down a large amount of standing timber or otherwise, a court of equity will interfere by an injunction and stay his further proceedings. A mortgagee, before entry, cannot claim from the mortgagor any part of the rents or profits. A mortgagee in possession has a right to take down and remove any buildings or other fixtures so erected by him that they may be taken away without injury to the soil.

It is usual to accompany the mortgage with a bond or note, containing personal stipulations for payment of the money, but this is not essential. A mortgage, taken to secure future. loans, advances, or liabilities, is good, if such intent be clearly expressed therein. All mortgages of real estate are to be recorded, in precisely the same manner as deeds of absolute conveyance; and such record is, to the same extent, notice to all the world.

Where negotiable notes are secured by mortgage, and assigned without the latter, the mortgagee becomes a trustee for the assignees and holds the mortgage for their benefit.

Upon bill in equity, in behalf of the mortgagor or his assigns, to redeem the estate, the mutual accounts of the parties are adjusted; the payment of debt and interest being required of the mortgagor, and an acccount of rents and profits from the mortgagee. If several parties have become, by purchase, attachment, or otherwise, owners of the equity of redemption, either may redeem upon paying the whole debt, looking to the rest for contribution of their several shares.

The same is true of a widow entitled to dower or homestead in the land.

Upon the death of a mortgagee, the debt and mortgage become personal assets in the hands of the executor or administrator.

The stamps required upon a mortgage deed are, fifty cents upon every five hundred dollars or fractional portion thereof.

SECTION 2.

Of Mortgages with Power of Sale on Default.

These differ from the common mortgage, only in the addition of provisions authorizing a sale of the premises in case the mortgagor fails to perform.

They are now in use in many of the States, and are frequently made, especially when the mortgage is given as a security for a loan of money. In such mortgages, power is conferred upon the mortgagee and his assigns, to sell the estate upon default being made and continued for a stipulated period. Provision is usually made in such deeds, for notice of the time and place of sale, that it shall be at public auction, &c., and for such other matters as will secure fairness in the disposal of the property, and the application of the proceeds.

The forms in common use vary considerably: but the one we have selected and subjoined as No. 2, "Real Estate Mortgage, with Power of Sale," will be found to embrace all that it is necessary to provide for.

Under a power of sale in the manner given in said form, a valid sale may be had after the death of the mortgagor. The words, "all costs and expenses," inserted in the form, will cover a reasonable amount paid for legal advice, and proper compensation to the mortgagee for time and trouble. In Varnum vs. Meserve, 8 Allen, 158, thirty dollars was allowed for legal advice, and twenty dollars for the mortgagee's time and trouble. If the parties desire to secure to the mortgagee a fixed amount, which shall cover these items, it may be done by a stipulation for a reasonable commission on the gross amount of the sale, to be allowed to the grantee or

his representatives for personal service and for legal advice and service. In addition to the stamps put upon a common mortgage deed, it is prudent to affix to a deed with power of sale, a one dollar stamp, on account of the power of attorney which it contains. As authority upon the subject of mortgages with power of sale, see Kingsley vs. Ames, 2 Met., 29, 30; Roarty vs. Mitchell, 7 Gray, 243; Montague vs. Dawes, 12 Allen, 397. As authority upon the subject of mortgages to secure future advances, see Commercial Bank vs. Cunningham, 24 Pick., 270; Hills vs. Farrington, 6 Allen, 80; Boswell vs. Goodwin, 31 Conn., 81; Stone vs. Lane, 10 Allen, 74.

SECTION 3.

Mortgages of Personal Property.

The mortgages of which we have spoken relate to realty: but personal property may also be mortgaged. Many of the rules applicable to mortgages of real estate apply also to those of personal property. The difference in the character of the property has, however, induced some changes in the laws. regulating personal mortgages. A mortgage of personal property, where the mortgagee takes and retains possession thereof, is in the nature of, and very similar to, a pledge. It is believed, that all personal property, and any profits arising thereout, may be the subject of a mortgage, which shall be valid, not only as between the parties, but as to all the world, if possession be taken and retained by the mortgagee. Without such possession, it is valid only between the parties and their representatives, unless the local statute law prescribes such formalities of execution and such registration, as shall, by force of the statute, constitute it a valid mortgage, and notice to all the world.

In some of the States, (as Connecticut,) the doctrine of the common law applies to the mortgage of all personal property, except certain specified articles, which may be legally mortgaged, by an instrument executed with the formalities required for a mortgage of real estate, and recorded in the registry of real estate deeds: but in most of them, the stat

utes regulating this matter make no distinction between the different kinds of personal property, but simply provide that mortgages of personal property shall be recorded in the place and manner particularly named, and such record dispenses with delivery of possession. The ordinary place of record is in the office of the clerk of the city or town where the property is located; and where the mortgagor has his principal place of business in another town, it is sometimes provided that it shall be recorded in both towns.

At common law, the same rules are generally applied, as to delivery of possession, which regulate sales of the same class of property.

In a very early English case, (Ryall vs. Rowles, 1 Vesey, 348,) it was held, that a mortgagee of goods permitting the mortgagor to retain possession has no specific lien against general assignees under a commission of bankruptcy. He was held to confide in the personal security of the mortgagor, and not in his right of lien.

This case has been generally followed, and is now quite universally the rule, in the absence of provisions for such registration as dispenses with delivery of possession.

As to description of the property, it should, in all cases, be made full and clear, either in the body of the instrument, or in a schedule annexed and made a part thereof by reference.

The rule upon this subject is, however, more stringent in some States than in others. In Connecticut, it must be full and particular; while, in the adjoining State of Massachusetts, a general description will be valid, such as "all my tools and implements in my shop at B.:" and the rule there is relaxed to such an extent, that false recitals may be rejected, if what remains is sufficient to identify the articles mortgaged. A mortgage of goods, which the mortgagor does not own at the date of the transaction, though he should afterwards acquire them, is void as against attaching creditors and subsequent vendees and mortgagees: but property may be included, which is incidental to a present ownership of that to which it must become annexed, as wool on sheep. owned by the mortgagor; and a provision in a mortgage, in