bond, or writing obligatory, bearing even date with the said mortgage, reference being thereto had will more fully and at large appear; and which said indenture of mortgage contained a special power, authorizing the said A. B., his heirs, executors, administrators or assigns, if default should be made in the payment of the said sum of money mentioned in the condition of the said bond or obligation, with the interest, or of any part thereof, to sell and dispose of the said mortgaged premises, or any part thereof, at public auction; and to make and deliver to the purchaser or purchasers thereof good and sufficient deed or deeds of conveyance in the law for the same, in fee simple; and whereas the said indenture of mortgage has been duly recorded, according to law, as by the said indenture of mortgage, and the record thereof, and of the power therein contained, reference being thereto had more fully and at large appears.

[If it has been assigned, say: and the same has been duly assigned to the said party of the first part by the said party to whom the said bond and mortgage were given, and which said assignment has been duly recorded, as by the record thereof more fully and at large appears.]

And whereas, default was made in the payment of the said sum of money intended to be secured by the said indenture of mortgage, whereupon the said mortgaged premises hereinafter particularly described, were, on the .....

day of

sold at public auction, to the said party of the second part, for the sum of........, being the highest sum bid for the same, public notice having been previously given of such sale by advertisement, inserted and published for twelve weeks, once in each week, successively, in a public newspaper entitled the .............. printed in the town of in the county in which the mortgaged premises are situated, a copy of which was, for twelve weeks prior to the time therein specified for such sale, duly affixed on the outward door of the court house in the town of ........ being the building in which the county courts of said county are directed to be held; and the said party of the first part has caused a copy of said printed notice or advertisement, to be duly served on all persons having any claim upon the said premises, as required by the act of May 7, 1844.

Now therefore, this indenture witnesseth: That the said party of the first part, for and in consideration of the sum so bid as aforesaid, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby confessed and acknowledged, hath granted, bargained, sold, aliened, released and confirmed, and by these presents doth grant, bargain, sell, alien, release and confirm unto the said party of the second part, and to his heirs and assigns forever, all; [here describe the premises sold;] together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, as the same are described and conveyed in and by the said indenture of mortgage; and also, all the estate, right, title, interest property, claim and demand whatsoever, both in law and equity, of the said E. F. the mortgagor, as well as of the said party of the first part, of, in and to the above described premises, with the appurtenances, as fully to all intents and purposes as the said party of the first part hath power and authority to grant and sell the same, by virtue of the said indenture of mortgage, and of the statute in such case made and provided, or otherwise. To have and to hold the said above mentioned and described premises, with the appurtenances thereof, unto the said

party of the second part, his heirs and assigns, to the sole and only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever.

In witness, &c.

Sealed and delivered in

presence of

NOTES. (1.) The recitals of the mortgage in the deed should be according to the language in the mortgage; which may differ from the above.

(2.) See 2 R. S. 545; L. of 1844, ch. 346, p. 529.; 3 R. S. 859, 5th ed., as to mode of foreclosure at law.

(3.) The power of sale contained in a mortgage is a power coupled with an interest, and does not die with the mortgagor; nor can it be revoked by him, as a mere naked power may be. (Bergen v. Bennett, 1 Caines' Cas. in Error, 13, 16 et seq. Knapp v. Alvord, 10 Paige, 209. Osgood v. Franklin, 2 John. Ch. 19. S. C. 14 John. 527.)

(4.) The mortgagee, or his assigns, may bid in the premises on a statute foreclosure, and in such case no deed is required to be given. (3 R. S. 861, 862, 5th ed. Jackson v. Colden, 4 Cowen, 266. Slee v. Manhattan Co. 1 Paige, 48. L. of 1838, ch. 266, § 8.) The documental evidence of the sale and purchase, as well as of the publication and service of notice, must be recorded with the county clerk of the county where the lands lie. (Id.)

No. 69.

SATISFACTION OF MORTGAGE.

A mortgage, bearing date the .....

.....

executed by

county of........ in book

day of........ eighteen hundred and recorded in the clerk's office of the ..... of mortgages, page ........, on the ...

day of...... and the bond accompanying said mortgage have been paid, or otherwise satisfied and discharged.

Dated the ........ day of ....... 18....

In presence of

........)

Acknowledgment or proof, as in other cases.

NOTE. See 1 R. S. 761, § 28; 3 id. 57, § 60, 5th ed. The certificate need not be under seal, nor need there be a subscribing witness, if it be acknowledged; but if not acknowledged at the time, there must be a subscribing witness, by whom it must be proved. It must be recorded at length by the clerk, and a minute of discharge entered on the page of the book containing the record of the mortgage. It may be given by the mortgagee, his personal representatives or assigns. If given by the assignee, the assignment should be recorded also. If by executors or administrators, a certificate by the surrogate that the party discharging the mortgage is such executor or administrator, may be insisted on by the clerk.

COVENANTS.

For the covenants usually inserted in a full covenant deed, see No. 40; for a covenant against grantor's own act, see No. 36; and for various other covenants, see Agreements, passim.

No. 70.

GENERAL FORM OF A COVENANT IN A DEED.

And the said party of the

........

part, for himself, his heirs, executors and administrators, doth hereby covenant to and with the said party of the ........ part, his heirs and assigns, [or his executors, administrators and assigns, as the case requires,] that &c.

No. 71.

FROM SEVERAL PERSONS TO ONE.

And the said A. B., C. D., and E. F., for themselves severally and respectively, and for their several and respective heirs, executors and administrators, and not jointly, nor the one for the other or others of them, nor for the heirs, executors, administrators, nor for the acts or deeds of the other or others of them, do and each and every of them doth hereby covenant, promise and grant to and with the said L. M., his heirs and assigns, [or his heirs, executors and administrators,] by these presents in manner following.

No. 72.

COVENANT BY LESSEE TO PAY ALL TAXES AND ASSESSMENTS ON THE DEMISED PREMISES.

And the said party of the second part, for himself, his executors, administrators and assigns, hereby covenants to and with the said party of the first part, his heirs and assigns, that he, the said party of the second part, shall and will at his and their proper costs and charges, bear, pay and discharge all such taxes, duties and assessments whatsoever as shall or may, during the said term hereby granted, be charged, assessed or imposed upon the said demised premises.

NOTES. (1.) The executors and administrators, as well as heirs and devisees, are liable for the debts of the deceased, whether they are named in the obligation or not. The executors or administrators are primarily liable, and after them the heirs and devisees, if lands come to them by descent or devise. (Butts v. Genung, 5 Paige, 254. Schermerhorn v. Barhydt, 9 id. 28. Wambaugh v. Gates, 11 id. 505. 2 R. S. 447 et seq. 3 id. 746, 753, 5th ed.)

(2.) No particular technical words are necessary to make a covenant; but any words which import an agreement between the parties to a deed, will suffice for that purpose. (Hallet v. Wylie, 3 John. 48. Bull v. Follett, 5 Cowen, 170.) The word "Covenant" is always the appropriate and expressive term, and is most frequently used.

(3.) In conveyances made since 1830, no covenant is implied, whether such conveyance contains special covenants or not. (1 R. S. 738, § 140. Hone v. Fisher, 2 Barb. Ch. 569. Kinney v. Watts, 14 Wend. 38.)

No. 73.

COVENANT TO REPAIR, DURING THE TERM.

And it is further covenanted that the said party of the second part, his executors, administrators and assigns, or some or one of them, at their own proper costs and charges, shall and will from time to time, and all time during the continuance of the

term hereby demised, when, where and as often as need or occasion shall be or require, cause the buildings and fences on the said premises to be well and sufficiently repaired and amended.

No. 74.

COVENANT TO CONDUCT A FARM IN A GOOD HUSBANDLIKE MANNER.

And it is further covenanted, that the said party of the second part, his executors, administrators and assigns, shall and will at all times during the continuance of the said term, manage and conduct the said farm in a good husbandlike manner, and according to the usual course of husbandry in the neighborhood; that he will not commit any waste or damage, or suffer any to be done; that he will keep the fences and buildings on the premises in good repair, reasonable wear thereof and damage by the elements excepted.

No. 75.

COVENANT TO RENEW THE LEASE AT THE EXPIRATION OF THE TERM.

And the said party of the first part, for himself, his heirs and assigns, covenants to and with the said party of the second part, his executors, administrators or assigns, that if the said party of the second part shall well and truly keep and perform the agreements herein contained, he, the said party of the first part, his heirs and assigns, will make and execute unto the said party of the second part a new lease, similar in all respects to this, and to run for the same period, of the premises aforesaid, upon due request and application of the said party of the second part made within thirty days prior to the expiration of the said term granted by these presents, [except, here state exceptions, if there be any.]

No. 76.

COVENANT THAT LESSEE MAY HAVE A RIGHT OF WAY, THROUGH LESSOR'S LAND TO THE PUBLIC ROAD.

And inasmuch as the premises hereby demised do not adjoin any public highway, but are wholly surrounded by the lands of the said party of the first part, or of strangers, the said party of the first part, for himself and his heirs and assigns, doth hereby grant to the said party of the second part, his executors, administrators and assigns, during the said term, a right of way in and over a certain strip of land of the said party of the first part, leading from the highway to the lands hereby demised, and which is described as follows: [here set out the description of the land intended as the private way:] over which way the said party of the second part, his servants and tenants, may freely pass and repass, on foot or with horses, oxen, cattle, sheep, swine, beasts of burden, wagons, carts, sleighs or other vehicles or carriages whatever, from the said highway to the said demised premises, at all times during the said term.

EMINENT DOMAIN.

No. 77.

FORM OF A RECORD OF THE ASSESSMENT OF DAMAGES.

(Adams v. Saratoga and Washington Rail Road Company, 11 Barb. 414-417.)

"In the matter of the Saratoga and Washington Rail Road Company, and certain owners of lands on the line of their rail road, for appraisement of damages. Washington county, ss. Whereas by virtue of the act entitled 'An act to incorporate the Saratoga and Washington Rail Road Company,' passed May 2, 1834, the said company were empowered, amongst other things, to purchase, receive and hold such real estate as might be necessary in accomplishing the objects for which the said incorporation was granted, and by their agents, surveyors and engineers, to enter upon and take possession of, and use all such land and real estate as might be necessary for the construction and maintenance of the single or double rail road or way, and the accommodation requisite and appertaining thereto, and to receive, hold and take all such voluntary grants and donations of land and real estate, for the purpose of said road, as should be made to the said corporation to aid in the construction, maintenance and accommodation of the said single and double rail road or way. But, all lands or real estate thus entered upon which were not donations, were required to be purchased by the said corporation of the owner or owners of the same, at a price to be mutually agreed upon between them. And in case of disagreement as to price, and before making any portion of said road on said land, the said corporation, or the owner of said land, might apply by petition to the first judge of the court of common pleas of the county in which said land is situated, who was authorized to proceed to appraise the said lands and damages, in the manner and form directed in and by the act aforesaid. And in case of the inability of said judge to conduct the said proceedings, any other judge of the same court, to whom no reasonable objections were made, was thereby empowered to conduct the same, as by the said act to which reference is hereby made, will more fully appear. And whereas, the lands and real estate, hereinafter described, are necessary for the construction and maintenance of the rail road of said company, and the accommodations requisite and appurtenant thereto. And the said company and John P. Adams, who is the owner of the same, disagree as to the price of the same. And whereas, the said corporation, before making any portion of said road on said land, in and by virtue of the said act, and the several acts amending the same, did, on the 21st day of April, 1847, apply by petition in the manner directed by said act of incorporation, to John McLean, Esq., first judge of the court of common pleas in the county of Washington, in which said lands are situated; who thereupon the same day directed the sheriff of the said county to give public notice in at least one newspaper printed in said county, that at some future day, not less than thirty days from the first publication of said notice, the clerk of said county, and the said judge, would proceed to draw at the clerk's office in said county, the names of twelve persons to serve as a jury between the said rail road company and the owners of lands along and adjoining the line of the rail road of said company, as then located in the county of Washington, with whom a disagree