or redeem from tax sales; and all monies thus paid and also money paid for the extension of abstract of title shall become so much additional indebtedness secured by this Mortgage Deed, and shall bear interest at the rate of Seven per cent per annum from the time of payment, and shall be paid by the party of the first part, or his assigns. And in the event of a foreclosure of this Mortgage Deed, the above mentioned sums herein authorized to be paid or advanced by the said party of the second part, and the attorney's or solicitor's fees above provided shall be included in the judgment or decree of the court, if same remains unpaid at that time, and upon a foreclosure of this Mortgage Deed and sale of said real estate out of the monies arising from such sale, there shall be paid: FIRST, all costs, fees, charges, and expenses, occasioned by said suit, including solicitor's fee of One Hundred Dollars; SECOND, the amount due on said Note interest and monies advanced, if any, as aforesaid; THIRD, all money and interest that may be owing by the party of the first part or either of them, to the owner or holder of said Note at the time of such sale not secured herein; FOURTH, rendering the overplus, if any, to the party of the first part or their legal representatives. A re-conveyance of said premises to be made to said grantor, his heirs or assigns, at their expense, on full payment of the indebtedness aforesaid, and performance of the covenants and agreement made herein by the said party of the first part. IN WITNESS WHEREOF, the said party of the first part have hereto set their hands and seals the day and year first hereinbefore written. Signed in presence of ALBERT JOHNSON. (Seal) ISAAC MARTIN. (Seal) MARY A. SMITH. (Seal) STATE OF ILLINOIS, SS. I, Charles W. Kossack, a notary public in and for said county, and state aforesaid, do hereby certify that Mary A. Smith and her husband John C. Smith who are personally known to me as real persons whose names are subscribed to the foregoing instrument of writing, as having executed the same, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument of writing as their free and voluntary act for the use and purposes therein set forth, including the release and waiver of the right of homestead and right of dower. GIVEN under my hand and Notarial seal, this 24th of January A.D. 1915. CHARLES W. KOSSACK, (Seal) Notary Public. 1. Define mortgage. 2. Who is the mortgagor? 3. Who is the mortgagee? QUESTIONS 4. Where is the legal title vested when a mortgage is given? 5. What is the equity of redemption? 6. How many mortgages may a person give on a piece of property? 7. Where there are several mortgages on the same property and foreclosure is made, how are the proceeds of sale of the property distributed? 8. When a mortgage is given who is entitled to possession of the property? 9. Who is entitled to the rents and profits on mortgaged property? 10. Who has an insurable interest in mortgaged property? 11. In case mortgaged property is insured, who is entitled to the insurance money if a loss occurs? 12. Describe the process of foreclosure. 13. What is the difference between an equitable foreclosure and a strict foreclosure? 14. What are some of the statutory regulations in regard to foreclosure? 15. What should a mortgage contain? CHAPTER XLVII FIXTURES 528. Definition. A fixture is a chattel that is annexed to real property in such a way as to become a part of it. Whether what is annexed is to be considered permanent and intended to become a part of the realty depends upon the intentions of the annexer, which intention is to be inferred from his relation to the land, from the mode of annexation and from the appropriation of the chattel to permanent use on or with the land. 529. The right to remove fixtures. How to determine what are fixtures, and the right to remove them, is the only question for consideration in a work of this nature. The question as to the exercising of the right of removal arises between landlord and tenant, vendor and vendee, mortgagor and mortgagee. Permanent ownership implies permanent improvements; therefore, chattels annexed to land by the owner are presumed to be permanent and a part of the realty. Temporary possession implies temporary improvements; therefore, improvements made by a tenant are presumed to be only temporary. A tenant, therefore, will be permitted to remove improvements which he has made to the property, while a vendor will not be. Rule: The tenant cannot remove the improvements if it will result in injury to the property, neither is he entitled to compensation from the landlord for the improvements he has made. 530. Degree of annexation. The old cases invariably hold that it is necessary that there should be some physical annexation of the chattel that it may become a part of the realty, but later cases hold that there need not be actual annexation; that a constructive annexation is sufficient to show that it was considered to be permanent and a fixture. Keys to a house or fences on land are to show that there was an intention to make the house and fences permanent. 531. If the chattel be permanently annexed, and its removal would injure the property, it cannot be taken away. The follow ing cases show that articles may be fixtures and still not be permanently annexed to the realty. Gas and water pipes running under floors and walls of a house are non-removable fixtures, but gas and water pipes fastened to the walls by means of hooks, and passing through holes in the floor, are removable when erected by the tenant. Chandeliers, burners and gas fixtures attached to the pipes by means of screws, etc., are generally removable. Such articles are considered as necessary furniture like carpets and pictures, but in the sale of a house, as it stands ready for occupancy, the gas fixtures will be included unless reserved. Stoves and furnaces put up in the usual way are removable by the party erecting them, but when built in the chimneys or brickwork, they are fixtures, and not removable. In the sale of a saw-mill chains used in drawing up logs, which could be hooked and unhooked at pleasure, were held to be a part of the mill, being essential to its use as such. An organ built in the recess of a church, left for that purpose and nailed to the floor, the removal of which would destroy the architectural design, is a fixture and passes with the sale of the building. A church bell in a temporary framework alongside of a church, that would be used until the edifice would be ready for the reception of the bell, is a fixture, and not subject to execution as personal property. Rails lying along the line of an intended fence are considered as a part of the realty. Boards in a barn, and used as a permanent flooring, and iron posts placed on the land for the purpose of building fences, cannot be seized as personal property. Poles used for the cultivation of hops are a part of the realty, although lying piled upon the ground. Rails, spikes, ties, etc., brought on the property and designed to be attached to the soil are fixtures. Engines, boilers, burrs and mill iron brought to the mill are fixtures although not actually attached to the land, and cannot be seized upon execution. The signboard of a hotel, formerly hanging outside, and afterwards removed and fastened to the wall of a room by spikes, is a permanent fixture. 532. Machinery. The question is often asked, "What machinery may be removed from the premises when property is sold or mortgaged?" It is not necessary that the machinery be actually annexed to the freehold. It may be made a part of the realty by appropriation. Troughs, duplicate pumps, slate-dressing machines, all visible on the property at the time of the sale, pass with the purchase, and cannot be removed by a vendor. Process kettles resting on a foundation under the floor, gasoline pots on brick foundations, which are necessary for the business for which the building was erected, are parts of it. Ponderous machines, kept in position by their own weight, are fixtures, and not removable. Casks, hogsheads and tubs, not fastened, are fixtures, if they are too large to pass out of any openings in the building. Loose tools about the premises are not considered fixtures. "Freehold" is an estate in real property either of inheritance or for life. 533. Landlord and tenant-trade fixtures. Rule: The general rule is that all trade fixtures are removable. By trade fixtures we mean fixtures that are put upon the property for the purpose of carrying on trade. A tenant being a temporary occupant, his erections are presumed to be made not for the benefit of the real property, but for the better enjoyment of his possession. If the tenant give up possession of the property in as good condition as when he took possession the landlord has no reason for complaint. The following strongly illustrate the extent to which the doctrine of the removal of fixtures has been carried: 534. Fixtures as between vendor and vendee, mortgagor and mortgagee. Rule: When real property is sold or mortgaged the fixtures pass to the vendee or mortgagee, although the articles were annexed and used for the purpose of trade, manufacture, domestic use or ornament. The purchaser or mortgagee is clearly entitled to everything which has been annexed for the purpose of increasing its value or adapting it to the purpose for which it is used, and within. this principle it has been held that bathtubs and pipes in a dwelling and counters in a store, etc., are fixtures, and not removable. Mirrors set in the walls, so as to become a part |