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Notice of Sale under Mortgage.

rearage of interest thereon, should, at the option of the said A. B., his administrators or assigns, become and be due and payable immediately thereafter, although the period limited in said mortgage for the payment thereof might not then have expired, any thing therein before contained to the contrary thereof in any wise notwithstanding.

day of

And whereas said Y. Z. neglects and refuses to pay the interest which became due on the 18, or any part thereof [except that dollars, paid on account thereof].

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And whereas more than thirty days have elapsed since said interest became due and payable, pursuant to the provisions of the said mortgage, and the undersigned has elected and hereby elects that the whole principal sum shall become and be due and payable immediately; and whereas there is due on said mortgage, at the date of the first publication of this notice, the principal sum of dollars, together with dollars interest thereon, from the day of 18, making altogether the sum of ̧

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dollars, and no suit or other proceeding has been instituted at law to recover the debt secured by said mortgage, or any part thereof [except one which has been heretofore discontinued].

Now, pursuant to the statute in such case made, and by virtue of the power and authority vested in the undersigned by said mortgage, I, A. B., the [assignee of the] mortgagee named in said mortgage, do hereby notify all persons whom it may concern, that I shall sell the said premises described in said mortgage, at public auction, at the vestibule of the City Hall, (u) in the city of o'clock in the noon, to the highest bidder at said sale.

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on the

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18 at

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The following is a particular description of said premises [here insert description] [Signature of mortgagee

[Date on the first day of

or attorney.]

publication.]

817. Notice By Assignee, etc.

[As in preceding forms, inserting at the* a clause like the following:] Which said mortgage, with the power of sale therein contained, was on the day of 18 duly transferred and assigned to the subscriber, who is now the holder and owner thereof, (v) said assignment being recorded in the office of the clerk of the county of

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on the day of
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established place for such sales. So of a notice of a sale at the Merchants' Exchange. But under either notice the sale should take place at the usual part of the Hall or Exchange. Hornby. Cramer, 12 How. Pr., 490.

(v) See Howard v. Hatch, 29 Barb., 297.

Affidavits to Proceedings.

818. Affidavit of Publication of the Notice of Sale.(w)

STATE OF
County of

[Here attach a printed copy of the notice.]

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M. N., of being duly sworn, says, that he is the printer [or, the foreman of the printer; or, the principal clerk of the printer; or, the only(a) clerk of the printer] of the a newspaper published in , in the county of aforesaid; and that the annexed

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notice of mortgage sale has been published in the said newspaper twelve weeks successively, at least once in each week, the said publication commencing on the day of

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18

day of [Signature of deponent.]

18 and ending on the

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819. Affidavit of Affixing Notice of Sale in the Proper Book in the County

Clerk's Office.

STATE OF
County of

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M. N., of

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, being sworn, says, that on the 18 and at least twelve weeks prior to the time specified in the annexed printed notice for the sale of the mortgaged premises therein described, he delivered a copy of such notice of sale to the county clerk of the county of who did immediately and on the same day, and in the presence of this deponent, affix the same in the proper book kept by said county clerk for the affixing thereon of notices of sale of the foreclosure of mortgaged premises.

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820. Affidavit of Affixing Notice of Sale on the Outward Door of the

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M. N., of the day of prior to the time specified therein for the sale, he affixed a notice, of which the annexed printed notice is a copy, on the outward door of the building where the County Courts are directed to be held in the county of wit, the City Hall in

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(w) This form is sustained by Howard v. that he is the only clerk, is sufficient, Hatch, 29 Barb., 297. though not saying "principal clerk."

(x) An affidavit by a clerk, which shows Gray v. Palmer, 9 Cal., 616.

Affidavits to Foreclosure Sale.

821. Affidavit of Service of Copy of Notice of Sale.

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day of

M. N., of [Here attach a the printed copy of the notice.]

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18 at [here specifying the place particularly], he personally served [here name the persons], with a notice of sale of which the annexed printed notice is a copy, by delivering a copy of said notice to each of them individually, and leaving the same with them [or, he served Y. Z. with a notice of sale, of which the annexed printed notice is a copy, by delivering a true copy of said notice to the wife [or, daughter, years, or thereabouts], of the said Y. Z., at his dwelling-house

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he being at the time absent therefrom; or, he served Y. Z., with a notice of sale, of which the annexed printed notice is a copy, by depositing a copy of said notice in the post-office in properly folded-and

].

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if inserted in an envelope add, and inclosed in a sealed envelope-and directed to him at his place of residence in SWORN [etc., as in Form 818].

[Signature.]

822. Affidavit By the Auctioneer to the Fact of Sale.

STATE OF
County of

at

[Here attach a printed copy of the notice.]

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M. N., of being duly sworn, says, that he sold the premises [below described being a part of the premises] described in the annexed printed notice, by public auction, at the time and place of sale therein mentioned-to wit, on the day of

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18 " o'clock in the noon, at the [here designate the place]; and that C. D. then and there purchased the same, for the price of dollars; he being the highest bidder, and that being the highest sum bidden for the

same.

And this deponent further saith, that said sale was made in the daytime, and, in all respects, honestly, fairly and legally conducted, according to his best knowledge and belief; and, also, that the said C. D. purchased the said premises fairly and in good faith, as he verily believes.

SWORN [etc., as in Form 818].

[Signature.]

[Add description, if the sale was of a part of the land described in the notice.]

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A gift of personal property may be made by parol, without any written instrument, except in respect to such property as requires a writing in order to make a valid sale or transfer for pecuniary consideration. But the appropriate instrument for conveying by gift is an ASSIGNMENT or BILL OF SALE (see those chapters), in which affection or a nominal payment, such as one dollar, may be named as the consideration.

Delivery-Where the subject-matter is capable of delivery, a delivery, actual or symbolical, is essential to constitute a valid gift by parol. There is no distinction, in this respect, between a gift between the living and one made in view of death. The possession, or some means of obtaining possession and control, must be transferred to the donee, or the title does not pass. The delivery need not be to the donee in person. A delivery to a third person to hold for the donee is sufficient. The making and delivering one's own promissory note as a gift, does not create a valid obligation, even when the note is given as a gift in view of death. But the holder of a note or other obligation made by a third person may give it away. After a gift has been thus executed, it cannot be retracted by the donor; although in cases of actual or constructive fraud, his creditors may set it aside. A gift in view of death, however, is revocable at the arbitrary will of the donor, if he survives; and this, notwithstanding the donee has been put in full possession of the subject of the gift.

A gift of land is to be made by deed acknowledged and recorded, as in other cases. (See the chapters on DEEDS and ACKNOWLEDGMENTS.) A nominal consideration may be named, or affection may be expressed to be the consideration, as in Form 720. Sometimes the conveyance is made in the form of a covenant to stand seized to uses, as in Form 636.

CHAPTER XL.

GUARANTIES.

By the Statute of Frauds, every special promise to answer for the debt, default or miscarriage of another person, is void, unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party to be charged therewith.(a) The words " for value received, "(b) or even a seal, (c) are a sufficient expression of a consideration to satisfy the statutory requirement.

(a) By a recent amendment in New York, the necessity of expressing the consideration has been abolished. Laws of 1863, 802, ch. 464. In some other States it never has been required.

Douglass v. Howland, 24 Пb., 35; Cooper v. Dedrick, 22 Barb., 516; Miller v. Cook, 23 N. Y., 495; Howard v. Holbrook, 28 How. Pr., 64.

(c) Livingston v. Tremper, 4 Johns., (b) Watson v. McLaren, 19 Wend., 557; 416; Douglass v. Howland 24 Wend., 35;

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For value received, I hereby guarantee the payment of the within note.(d) [Date.]

824. Guaranty of Payment of Bond.

[Signature.]

IN CONSIDERATION of the sum of one dollar to me in hand paid by Y. Z., I hereby guarantee the payment of the foregoing bond.(e)

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825. Guaranty of Collectibility, etc.

FOR VALUE received, I hereby guarantee that the within(ƒ) [or, collectible].(h)

Bush v. Stevens, Ib., 256; Barnum v. Childs, 11 Barb., 14; affirming S. C., 1 Sandf., 58; Rosenbaum v. Gunter, 2 E. D. Smith, 415.

(d) An absolute guaranty of payment of a negotiable note renders the guarantor liable on default of the principal, and without proof of demand and notice. Allen v. Rightmere, 20 Johns., 365; Mann v. Eckford, 15 Wend., 502; Van Renssellaer v. Miller, Hill & D. Supp., 287. He is liable unless he can show that the omission of demand and notice has been the cause of injury to him. Clark v. Burdett, 2 Hall, 197.

(e) Where the guaranty of a mortgage was of "the payment and collection of the principal and interest money of the bond and mortgage within assigned,"-Held, that collection meant collection by foreclosure, and that the guarantor was not liable as a party to an action of foreclosure. Baxter v. Smack, 17 How. Pr., 183.

(ƒ) Upon a guaranty of the collection "of the within note," the guarantor is not liable, unless the guarantee has used due diligence, not only against the makers but also as against such as were indorsers

is good(g) [Signature.]

at the time of making the guaranty. Loveland v. Shepard, 2 Hill, 139; Moakley v. Riggs, 19 Johns., 69.

(g) A guaranty that a note is good, is not a guaranty of payment on demand, but that the maker is solvent, and the amount can be collected by due course of law. Cooke v. Nathan, 16 Barb., 842.

(h) A guaranty of the collectibility of a note is a conditional promise, binding only in case of diligence in prosecuting the debt. Gallagher v. White, 31 Barb., 92. And if the condition be not performed by the guarantee, the guarantor is under no moral obligation to pay the note, and his liability cannot be revived, even by an express promise. Van Derveer v. Wright, 6 Ib., 547. And in order to charge the guarantor, it must be proven that the parties to it were not good, and that payment could not be enforced from them.

231.

Curtis v. Smallman, 14 Wend.,

Under a simple guaranty of collection, the creditor is not bound to notify the guarantor of his attempt and failure to collect the debt, before suing on the guaranty. Unless the guarantor stipulates for

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