Saturday, March 1, 2014
Understanding Legal Land Terms
Whilst looking through some notes I took years ago on the Vincent family, I found a notice concerning a mortgage default. Though hard to read, it did give the book and page number where the mortgage could be found. It read in part:
Default having been made in payment of the __ __ upon a certain mortgage bearing the date the 26th day of April, 1841 recorded in Cayuga County Clerk's office on the 12th day of November, 1841 in book 30 of Mortgages at page 197, executed by Thomas Vincent and Matilda his wife, mortgagers to Philip Burghdorf as mortgagee and mortgage assigned to George Hawley by mortgagee, and upon which there remains unpaid the sum of $ 1,769 and 10 cents...half of said property will be sold at public auction to the highest bidder at the courthouse in the City of Auburn on Oct. 20, 1853.
There's alot of legal terminology there. While I thought I knew what most of it meant, it was a good time to make sure. Accuracy is paramount here at Ellie's Ancestors! Since some of you may need to read a mortgage or deed in your research, actually you almost certainly will at some point, I thought I'd pass along what I found, to wit--
Mortgagee-- one that holds a mortgage or holds mortgaged property as security for repayment of a loan.
Mortgager-- a person who borrows money by mortgaging his property to the lender as security, a mortgage isn't a loan, it's a legal document that gives your lender the right to take your property if you don't make your payments.
Assign-- to transfer a real estate loan, in this case Philip B. sold, or "assigned", the mortgage to George Hawley.
Execute-- a legal term that means to sign.
Presents- the present writings, or this document
Bond-- an instrument of indebtedness of the bond issuer to the bond holder, basically an IOU
Family Search now has New York land records online, so I took the opportunity to look up said mortgage which was right where the notice said it would be at page 197. After reading the document, it first appeared Thomas was the seller in this particular transaction. However, towards the end it talked about Burghdorf being able to sell the land if default was made??? After carefully reading it again and noting my definitions a whole new interpretation emerged.
It began like a regular deed--This indenture made this twenty sixth day of April-- blah blah blah-- between Thomas Vincent of the town of Victory, County of Cayuga, State of New York of the first part and Philip Berghdorf, of the same place, of the second part. Witnesseth the party of the first part for and in consideration of $1,600, (this is the part where the phrase "to him duly paid" would normally appear, but in this case it doesn't), sells, grants, conveys to Philip and/or his heirs... followed by a detailed description of the land, 96 acres of it.
Then came the key phrase that somehow I missed on the first reading, (OK, the second one too, I hate reading legalese and tend to skim), "This conveyance is intended as a mortgage to secure the payment of $1,600 to Philip Burghdorf according to a bond executed by Thomas Vincent to Philip Burghdorf. These presents shall be void if such payment is made." So... Thomas owed Philip $1,600 and the document was a deed of sorts, transferring Thomas' land to Philip B. and his heirs, but only in the event Thomas missed his payments. If that happened, Philip B. could enforce the deed and assume ownership of the land. Which it appears is what happened, well actually it appears George Hawley, to whom the mortgage was assigned, foreclosed. I'm glad we got that all figured out!
The Vincents lost half of their 96 acres, that must have been most of the farm! I'm not sure because I can't find a record of Thomas buying the land in any of the Cayuga County grantee indexes. Neither Thomas nor Matilda lived long enough to see the foreclosure, Thomas dying in 1842, just a year after signing, or "executing", the mortgage and Matilda in 1847. Their son John would have been 22 when his mother passed, perhaps he tried to keep the payments up but was unable to, accounting for the land not being sold until 1853. Or maybe George Hawley hung onto it for a few years before deciding to sell. As always in genealogy, the more you find, the more questions arise.