In some acts it is provided that the wife of the mortgagor must join. In many states are found provisions to punish any removal or disposition of the property by the mortga gor in prejudice of the rights of the mort gagee. See LEX REI SITE; CONFLICT OF LAW S.
The property must be described with such accuracy as the nature of at will admit, and the description should be sufficient to enable third parties to identify the property. As a general rule it may be said that any personal property may be mortgaged, but this with the reservation that in a number of states the right is restricted to classes of articles, more or less numerous. Naturally, "a com mon subject of such a mortgage is a shop keeper's stock of goods employed by him in regular course of business. As to this, every variety of rule from the absolute prohibition of such mortgages to their freest use will be found. In some cases they bind the stock at the time the mortgage is created, in oth ers they bind the at the time of fore closure, in others they bind what is left of the original stock, but not the accessions ; in others they bind the accessions, provided no other specific lien has attached before the mortgagee secures possession of them.
Where animals are mortgaged, the natural increase will be covered by the mortgage, in the absence of a statutory provision to the contrary. A mortgage on an article in pro cess of manufacture will cover it when com pleted if still capable of identification. Growing crops are frequently the subject of mortgage, and the mortgage is valid at any stage of their development, and even in an ticipation of their planting. See LIENS. As to a mortgage in its terms covering after ac quired property see supra, and also corpora tion mortgages infra.
The remedies upon a mortgage by the mortgagee on default of payment are vari ous. In cases of real estate he may (1) bring ejectment on his legal title ; (2) file a bill and obtain a decree of foreclosure, or a sale of the property mortgaged ; 4 Kent *180; (3) exercise a power of sale, if such power be in the mortgage; (4) take posses sion of the land, if he can do so peaceably, his title becoming sure, and the equity of redemption being barred after the lapse of twenty years or a period equal to the lapse of time necessary to bar a writ of entry, or in some states for a less period provided by law ; (5) by proceeding in accordance with statutory enactments which vary in the dif ferent states.
In cases of chattel mortgages, the mort gagee's remedy is either (1) to bring a bill in equity, obtain a decree of foreclosure and a sale; (2) if he have the thing mortgaged in his possession, to sell it after giving to the mortgagor notice of such sale, and also of the amount of the debt due.
A remedy by foreclosure is barred where the obligation secured by the mortgage is barred; Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72 ; Pollock v. Maison, 41 Ill. 516 ; contra, Mitchell v. Clark, 35 Vt. 104; Bush v. Cooper, 26 Miss. 599, 59 Am. Dec. 270.
In some cases a reconveyance by the mort gagee is necessary when the mortgage has been paid after default; L. R. 5 Ch. 227; Brobst v. Brock, 10 Wall. (U. S.) 536, 19 L. Ed. 1002; in other cases no reconveyance is necessary ; Armitage v. Wickliffe, 12 B. Mour. (Ky.) 497.
A tender after default discharges the mort gage lien ; Trimm v. Marsh, 54 N. Y. 599, 13 Am. Rep. 623 ; Van Husan v. Kanouse, 13 Mich. 306; contra, Shields v. Lozear, 34 N. J. L. 505, 3 Am. St. Rep. 256; Currier v. Gale, 9 Allen (Mass.) 522.
It is held in England that a mortgagee's purchase at a foreclosure sale, under a pow er of sale, by having another buy for him, does not pass a title free from the interest of the mortgagor unless the right to purchase is conferred by the mortgage; [1891] A. C. 150; Lovelace v. Hutchinson, 106 Ala. 417, 17 South. 623 ; if the power is conferred by the mort gage, the mortgagee may buy at his own sale ; North Brookfield Savings Bank v. Flanders, 161 Mass. 335, 37 N. E. 307; Yount v. Morrison, 109 N. C. 520, 13 S. E. 892; San ford v. Kane, 127 Ill. 591, 20 N. E. 810. A mere power to sell has been held to confer on the mortgagee the right to purchase; Palm er v. Young, 96 Ga. 246, 22 S. E. 928, 51 Am. St. Rep. 136. But in scire fac.as pro ceedings in Pennsylvania the mortgagee may buy at his own sale; and it is everywhere a familiar practice in the foreclosure of cor porate mortgages for the bondholders to unite to buy in the property.