71-1-101. Definition.

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71-1-101. Definition. "Mortgage" is a contract by which specific property is hypothecated for the
performance of an act, without the necessity of a change of possession.

History: En. Sec. 3810, Civ. C. 1895; re-en. Sec. 5731, Rev. C. 1907; re-en. Sec. 8246, R.C.M. 1921; Cal. Civ. C. Sec.
2920; Field Civ. C. Sec. 1608; re-en. Sec. 8246, R.C.M. 1935; R.C.M. 1947, 52-101.

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71-1-102. Power of attorney to execute. Page 1 of 1

71-1-102. Power of attorney to execute. A power of attorney to execute a mortgage must be in

writing, subscribed, acknowledged or proved, certified, and recorded in like manner as powers of
attorney for grants of real property.

History: En. Sec. 3822, Civ. C. 1895; re-en. Sec. 5743, Rev. C. 1907; re-en. Sec. 8258, R.C.M. 1921; Cal. Civ. C. Sec.
2933; re-en. Sec. 8258, R.C.M. 1935; R.C.M. 1947, 52-113.

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71-1-103. Mortgage a special lien -- on what a lien. Page 1 of 1

71-1-103. Mortgage a special lien -- on what a lien. (1) The lien of a mortgage is special, unless
otherwise expressly agreed, and is independent of possession.
(2) A mortgage is a lien upon everything that would pass by a grant of the property.

History: (1)En. Sec. 3812, Civ. C. 1895; re-en. Sec. 5733, Rev. C. 1907; re-en. Sec. 8248, R.C.M. 1921; Cal. Civ. C.
Sec. 2923; Field Civ. C. Sec. 1609; re-en. Sec. 8248, R.C.M. 1935; Sec. 52-103, R.C.M. 1947; (2)En. Sec. 3815, Civ. C.
1895; re-en. Sec. 5736, Rev. C. 1907; re-en. Sec. 8251, R.C.M. 1921; Cal. Civ. C. Sec. 2926; Based on Field Civ. C. Sec.
1617; re-en. Sec. 8251, R.C.M. 1935; Sec. 52-106, R.C.M. 1947; R.C.M. 1947, 52-103, 52-106.

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71-1-104. Mortgage not a personal obligation. Page 1 of 1

71-1-104. Mortgage not a personal obligation. A mortgage does not bind the mortgagor personally
to perform the act for the performance of which it is a security unless there is an express covenant
therein to that effect.

History: En. Sec. 3817, Civ. C. 1895; re-en. Sec. 5738, Rev. C. 1907; re-en. Sec. 8253, R.C.M. 1921; Cal. Civ. C. Sec.
2928; re-en. Sec. 8253, R.C.M. 1935; R.C.M. 1947, 52-108.

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71-1-105. Mortgagee not entitled to possession. Page 1 of 1

71-1-105. Mortgagee not entitled to possession. A mortgage does not entitle the mortgagee to the
possession of the property unless authorized by the express terms of the mortgage, but after the
execution of the mortgage, the mortgagor may agree to such change of possession without a new
consideration.

History: En. Sec. 3816, Civ. C. 1895; re-en. Sec. 5737, Rev. C. 1907; re-en. Sec. 8252, R.C.M. 1921; Cal. Civ. C. Sec.
2927; Based on Field Civ. C. Sec. 1620; re-en. Sec. 8252, R.C.M. 1935; R.C.M. 1947, 52-107.

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71-1-106. Waste prohibited. Page 1 of 1

71-1-106. Waste prohibited. No person whose interest is subject to the lien of a mortgage may do
any act which will substantially impair the mortgagee's security.

History: En. Sec. 3818, Civ. C. 1895; re-en. Sec. 5739, Rev. C. 1907; re-en. Sec. 8254, R.C.M. 1921; Cal. Civ. C. Sec.
2929; re-en. Sec. 8254, R.C.M. 1935; R.C.M. 1947, 52-109.

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71-1-107. Transfers of interest. Page 1 of 1

71-1-107. Transfers of interest. (1) Every transfer of an interest in property, other than in trust,
made only as a security for the performance of another act is to be deemed a mortgage, except when in
the case of personal property it is accompanied by actual change of possession, in which case it is
deemed a pledge.
(2) The fact that a transfer was made subject to defeasance on a condition may, for the purpose of
showing such transfer to be a mortgage, be proved (except as against a subsequent purchaser or
encumbrancer for value and without notice), though the fact does not appear by the terms of the
instrument.

History: (1)En. Sec. 3813, Civ. C. 1895; re-en. Sec. 5734, Rev. C. 1907; re-en. Sec. 8249, R.C.M. 1921; Cal. Civ. C.
Sec. 2924; Based on Field Civ. C. Sec. 1610; re-en. Sec. 8249, R.C.M. 1935; Sec. 52-104, R.C.M. 1947; (2)En. Sec. 3814,
Civ. C. 1895; re-en. Sec. 5735, Rev. C. 1907; re-en. Sec. 8250, R.C.M. 1921; Cal. Civ. C. Sec. 2925; Field Civ. C. Sec. 1612;
re-en. Sec. 8250, R.C.M. 1935; Sec. 52-105, R.C.M. 1947; R.C.M. 1947, 52-104, 52-105.

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71-1-108. Subsequently acquired title. Page 1 of 1

71-1-108. Subsequently acquired title. Title acquired by the mortgagor subsequent to the execution
of the mortgage inures to the mortgagee as security for the debt in like manner as if acquired before the
execution.

History: En. Sec. 3819, Civ. C. 1895; re-en. Sec. 5740, Rev. C. 1907; re-en. Sec. 8255, R.C.M. 1921; Cal. Civ. C. Sec.
2930; re-en. Sec. 8255, R.C.M. 1935; R.C.M. 1947, 52-110.

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71-1-109. Mortgage of property adversely held. Page 1 of 1

71-1-109. Mortgage of property adversely held. A mortgage may be created upon property held
adversely to the mortgagor.

History: En. Sec. 3811, Civ. C. 1895; re-en. Sec. 5732, Rev. C. 1907; re-en. Sec. 8247, R.C.M. 1921; Cal. Civ. C. Sec.
2921; Field Civ. C. Sec. 1614; re-en. Sec. 8247, R.C.M. 1935; R.C.M. 1947, 52-102.

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71-1-110. Passage of mortgage by assignment of debt. Page 1 of 1

71-1-110. Passage of mortgage by assignment of debt. The assignment of a debt secured by

mortgage carries with it the security.

History: En. Sec. 3825, Civ. C. 1895; re-en. Sec. 5746, Rev. C. 1907; re-en. Sec. 8261, R.C.M. 1921; Cal. Civ. C. Sec.
2936; re-en. Sec. 8261, R.C.M. 1935; R.C.M. 1947, 52-115.

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71-1-111. Power of sale. Page 1 of 1

71-1-111. Power of sale. A power of sale may be conferred by a mortgage upon the mortgagee or
any other person, to be exercised after a breach of the obligation for which the mortgage is a security.

History: En. Sec. 3821, Civ. C. 1895; re-en. Sec. 5742, Rev. C. 1907; re-en. Sec. 8257, R.C.M. 1921; Cal. Civ. C. Sec.
2932; Field Civ. C. Sec. 1615; re-en. Sec. 8257, R.C.M. 1935; R.C.M. 1947, 52-112.

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71-1-112. Applicable laws. Page 1 of 1

71-1-112. Applicable laws. (1) In the event of conflict between any provision of this part and the
Uniform Commercial Code, the latter shall govern.
(2) All mortgages and deeds of trust covering both real and personal property executed by a
corporation, association, or partnership or by an individual or individuals are governed by the law
relating to mortgages or deeds of trust of real property so far as the real property is concerned and by the
Uniform Commercial Code--Secured Transactions so far as the personal property is concerned.

History: (1)En. 52-117 by Sec. 11-133, Ch. 264, L. 1963; Sec. 52-117, R.C.M. 1947; (2)En. Sec. 3849, Civ. C. 1895; re-
en. Sec. 5756, Rev. C. 1907; amd. Sec. 1, Ch. 72, L. 1921; amd. Sec. 1, Ch. 39, L. 1927; amd. Sec. 1, Ch. 11, L. 1931; re-en.
Sec. 8273, R.C.M. 1935; amd. Sec. 11-134, Ch. 264, L. 1963; Sec. 52-212, R.C.M. 1947; R.C.M. 1947, 52-117, 52-212.

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71-1-113. Limit on the amount of funds on reserve. Page 1 of 1

71-1-113. Limit on the amount of funds on reserve. Except as provided in 71-1-114, if a lending
institution requires a borrower under a mortgage or trust indenture of real property to include in his
regular payment additional payment into a reserve fund held by the lending institution for the future
payment of property taxes, insurance premiums, and other expenses, the amount of funds on reserve
may not exceed 110% of the projected amount needed to pay such expenses.

History: En. Sec. 1, Ch. 490, L. 1979.

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71-1-114. Exception to limitation. Page 1 of 1

71-1-114. Exception to limitation. If the borrower desires, the lending institution and borrower may
enter into a written contract in which they agree that the funds on reserve exceed 110% of the reasonable
amount needed to pay such expenses.

History: En. Sec. 2, Ch. 490, L. 1979.

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71-1-115. Record of reserve fund required. Page 1 of 1

71-1-115. Record of reserve fund required. Every lending institution shall keep an itemized record
of each payment entered into the reserve fund and each disbursement withdrawn from the reserve fund.
The lending institution shall annually mail a statement of total receipts and disbursements to each
borrower under a mortgage or trust indenture of real property.

History: En. Sec. 3, Ch. 490, L. 1979.

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