LIENS AND MORTGAGES1

LOUIS BOISOT LL.B. 111 MONROE ST. CHICAGO

Real estate mortgages. Recent legislation in regard to real estate mortgages seems to be concerned chiefly with the best way to release them. Thus in Kansas ['03 ch.365] it is provided that in case of the mortgagee's death, a mortgage may be released by his executor or administrator during the period of administration and afterward by his heirs or devisee. In Minnesota ['03 ch.342] a mortgage running to a corporation may be released by its president or vice president attested by the secretary or treasurer, no mention being made of the corporate seal, and in Wisconsin ['03 ch.267] a mortgage running to a corporation which has ceased to exist or which has no officer in the state competent to discharge the same of record may be discharged by order of the Circuit Court. In Minnesota it has also been provided ['03 ch.15] that the 15 year statute of limitations applicable to foreclosure by power of sale shall not be extended by nonresidence or by partial payment after maturity. And in Pennsylvania a recent act ['03 ch.258] allows one who has mortgaged land and then sold it, to pay off the mortgage, and, if entitled to subrogation, to compel the mortgagee to assign the bond and mortgage to him.

Chattel mortgages. The tendency of legislation regarding chattel mortgages is toward making them more efficient. In Delaware ['03 ch.458] the lien of such a mortgage has been extended from a period of three years to one of five; in Colorado ['03 ch.72] and Kansas ['03 ch.364] a chattel mortgage may be renewed from time to time in two year extensions, by filing an affidavit; and in Montana ['03 ch.55] it is provided that a chattel mortgage may be extended before maturity, as well as within 60 days thereafter, and that successive one year extensions may be made indefinitely. A wise provision in North Dakota ['03 ch.133] allows a chattel mortgage to be acknowledged before any officer authorized to take acknowledgments of deeds. A step in the same direction has been taken in Illinois ['03 p.253] where it is now allowable (except in Cook county) to acknowledge a chattel

See also Summary of Legislation, 404.

mortgage before any justice of the peace in the county instead of requiring it to be done, as heretofore, before some justice in the town where the mortgagor lives. A Maine statute ['03 ch.130] requires the mortgagee's consent to the sale of mortgaged chattels to be in writing and signed by him. In North Dakota the removal or sale of mortgaged chattels without the mortgagee's consent used to be a felony if the value of the property exceeded $500; by a recent act ['03 ch.132] it is a felony if the value exceeds $100, otherwise a misdemeanor.

Railroad mortgages. The curious provision of the South Carolina statutes requiring the description of mortgaged property to be written or typewritten and making the mortgage invalid if entirely printed, has been amended ['03 ch.62] so as to be no longer applicable to mortgages executed by a railroad or manufacturing company. Another act in the same state ['03 ch.57] exempts railroad mortgages from the 20 year statute of limitations applicable to the lien of real estate mortgages, and it is also provided there ['03 ch.49] that railroad mortgages shall be recorded within 40 days after execution in the office of the secretary of state and within six months thereafter in each county in which any part of the mortgaged real estate is situated.

Foreclosure. The year's legislation contains a number of minor amendments of the laws regulating the foreclosure of real estate and chattel mortgages. In North Dakota ['03 ch.120] and Wisconsin ['03 ch.122] a report of the foreclosure of a lien on chattels or chattel mortgage must be made. In Georgia ['02 p.53]a foreclosure of a chattel mortgage is permitted whenever any fraudulent disposition of the mortgaged property is contemplated. In Maine ['03 ch.204] a notice of foreclosure of a chattel mortgage may now be served by leaving a copy at the mortgagor's residence or by publication whenever the mortgagor can not be found by reasonable diligence. Probate Courts in Idaho ['03 p.94] have been given jurisdiction to foreclose mortgages on real and personal property, as well as mechanics liens and other liens, where the debt does not exceed $500. In Maine ['03 ch.117] attorney fees may be recovered in foreclosure only when the amount has been actually paid out, and in North Dakota ['03 ch.153] a real

estate mortgage can not be foreclosed by an agent or attorney. unless his power of attorney has been recorded. A Minnesota statute ['03 ch.87] provides a method of foreclosing mortgages on land that has been registered under the Torrens law, and a New Jersey statute ['03 ch.199] makes a foreclosure suit lis pendens as to subsequent purchasers and encumbrancers by unrecorded conveyances, who are not made parties thereto, from the time the bill is filed. A wise provision in new states where land values are subject to rapid fluctuations is the Oregon statute ['03 p.252] forbidding deficiency decrees in suits to foreclose purchase money mortgages.

Mechanics liens. Illinois has adopted a complete mechanics lien law ['03 p.230]. The tendency of Legislatures to change these laws is generally to be deplored since frequent changes tend to make confusion, but this change is welcome since the new act takes the place of the cumbersome and unsatisfactory act of 1895 whose obscure verbiage has bewildered lawyers and builders alike. Florida has also adopted a new act ['03 ch.38] which seems to be complete in itself though it does not expressly repeal all existing laws on the subject.

In other states, minor changes have been made, mostly in the direction of extending the scope of the lien laws. Thus liens are given to threshers in Idaho ['03 p.93] to blacksmiths and wheelwrights in Arkansas ['03 ch.147] and to fishermen in Oregon ['03 p.121]. In Colorado ['03 ch.141] oil and gas wells are made subject to liens for work done thereon, and in Minnesota ['03 ch.338] liens on mines are given to those furnishing skill, materials or machinery for their development. In Washington the liability of vessels to liens has been considerably extended by an act ['03 ch.149] creating liens on vessels for loss from breach of contract for towing, loading, unloading, dunnaging or stevedoring. A Kansas statute ['03 ch.383] allows a mechanic to retain a lien on an article made or repaired by him though he has given up possession to the owner, and a Wisconsin law ['03 ch.298] allows subcontractors and laborers to have liens though the original contract contains a stipulation to the contrary. Liens for sidewalks are now allowed in Michigan ['03

ch.17]. The rights of those who work for or furnish materials to contractors on public buildings are protected in Oregon ['03 p.256] by requiring the contractor to give a bond for their benefit, and in Pennsylvania ['03 ch.187] by giving them a claim in the nature of a lien on the money due the contractor.

Some minor changes in procedure have also been made during the year. In Nevada ['03 ch.32] the time for filing subcontractor's or materialman's lien claims has been extended from 30 days to 50 days, actions against the same property may be consolidated, and attorney's fees are recoverable as costs on foreclosure; in North Dakota ['03 ch.122] a method of selling buildings apart from land on foreclosure is provided; and in West Virginia ['03 ch.42] forms for lien claims are declared by statute.

The Washington statute [Ann. C. & S. '97 §5953-54] attempting to give an absolute lien on foreign vessels for work done or materials furnished at the request of a contractor or subcontractor regardless as to whether the contractor has been paid in full or not has been held unconstitutional in so far as it attempts to control the administration of the maritime law by creating and superadding conditions for the benefit of a particular class of creditors thus depriving the owners of the defense of payment [The Roanoke 189 U. S. 185]. And the section of the California Code [C. C. P. §1203] requiring contractors to file bonds with their contracts, which two years ago was declared unconstitutional so far as owners was concerned [Review of. Legislation 1901, p.224] has now been declared unconstitutional as to the contractors as well [Shaughnessy v. American Surety Co. 71 P. 701].

Miscellaneous liens. In Colorado ['03 ch.71] attorneys are given a lien for fees on money and property of their clients in their hands and also on judgments obtained by them, and in the same state it is also provided ['03 ch.70] that when a business is suspended by the action of creditors or by the appointment of a receiver or trustee, debts due to laborers, servants and employees shall constitute preferred claims. In Illinois ['03 p.6] the lien of the owner of a sire on his progeny is extended from a period of six months to that of one year.

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THE FAMILY1

AMASA M. EATON, PRESIDENT OF THE CONFERENCE OF COMMISSIONERS ON UNIFORMITY OF LEGISLATION

Marriage

Parties. Age. In Florida, ch.25 amending R.S. '92 § 2606 relating to intermarriage of white and colored persons provides that either or both parties to such interdicted marriages shall be punished by imprisonment in state prison not exceeding 10 years or by fine not exceeding $1000. In Kansas, ch.220 attempts to regulate and prohibit marriages of imbecile, weak-minded, epileptic and insane persons, and children born after their parents have become insane. No woman under 45, nor any man unless he marry a woman over 45, either of whom are epileptic, imbecile etc. shall marry and it is also made unlawful to marry such persons. A penalty of fine or imprisonment, or both is provided. In Michigan, ch.257 amending C.L. '97 $8590-91 prohibits marriages of first cousins in addition to those previously prohibited.

License. In Delaware, ch.281 amends R.C. '93 ch.9 § 16 by repealing the provision requiring the clerk or justice granting a marriage license to take a bond to the state. In Nevada, ch.45 amends C.L. '00 §490 relating to recording of marriage certificates and provides that persons solemnizing marriages, failing to make and deliver to the recorder a certificate thereof, or a recorder whose legal fees have been tendered to him, failing or neglecting to record such a certificate, shall be guilty of a misdemeanor. In New Hampshire, ch.93 provides that nonresidents shall file notice of intention of marriage five days before issuance of a certificate by the clerk. In Oregon, p.99 provides that any person solemnizing a marriage shall make and deliver a certificate thereof within one month to the county clerk who issued the license and also to the county clerk where the marriage took place, with form and provisions as to fees. In Pennsylvania, ch.75 provides that the clerk of the court shall question appliSee also Summary of Legislation, 474.