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record in the minutes of the discharge of such mortgage, made by the recorder upon the margin of the record thereof. SEC. 39. Any mortgagee or his personal representative or assignee, as the case may be, after a full performance of the conditions of the mortgage, whether before or after a breach thereof, who shall, for the space of seven days after being thereto requested, refuse or neglect to execute and acknowledge a certificate of discharge or release thereof, shall be liable to the mortgagor, his heirs or assigns, in the sum of one hundred dollars, and also for all actual damages occasioned by such neglect or refusal.

SEC. 40. All conveyances of real estate heretofore made and acknowledged, or proved, according to the laws in force at the time of such making and acknowledgment or proof, shall have the same force as evidence, and be recorded in the same manner and with like effect, as conveyances executed and acknowledged in pursuance of this act.

SEC. 41. The legality of the execution, acknowledgment, proof, form, or record of any conveyance or other instrument heretofore made, executed, acknowledged, proved, or recorded, shall not be affected by by anything contained in this act, but shall depend for its validity or legality upon the laws then existing and in force.

SEC. 42. Every interest in real estate, granted or devised to two or more persons, other than executors or trustees, as such shall be a tenancy in common, unless expressly declared in the grant or devise to be otherwise.

SEC. 43. The term "heirs," or other words of inheritance, shall not be necessary to create or convey an estate in fee simple, and every conveyance of any real estate, hereafter executed, shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms, or be necessarily implied in the terms of the grant.

SEC. 44. Where a remainder in lands or tenements, goods or chattels, shall be limited by deed, or otherwise, to take effect on the death of any person without heir or heirs of his or her body, or without issue, the word "heirs" or "issue" shall be construed to mean heirs or issue living at the death of the person named as ancestor.

SEC. 45. A future estate, depending on the contingency of the death of any person without heirs or issue, or children, shall be defeated by the birth of a posthumous child of such person capable of taking by descent.

SEC. 46. When an estate shall by any conveyance be limited in remainder, to the son or daughter, or issue, or to the use of the son or daughter, or issue to be begotten, such son,

daughter, or issue born after the decease of his or her father, shall take the estate in the same proportion and in the same manner as if he or she had been born in the lifetime of the father, although no estate shall have been created or conveyed to support the contingent remainder after his death.

SEC. 47. Grants of rents, or of reversions or remainders, shall be good and effectual without attornment of the tenants, but no tenant who, before notice of the grant, shall have paid rent to the grantor shall suffer any damage thereby.

SEC. 48. The attornment of a tenant to a stranger shall be void, unless it be with the consent of the landlord of such tenement, or in pursuance to or in consequence of a judgment or decree of some court of competent jurisdiction.

SEC. 49. Lineal or collateral warrantees with all their incidents are abolished, but the heirs and devisees of every person who shall have made any covenant or agreement in reference to the title of, in, or to any real estate, shall be answerable upon such covenant, or agreement, to the extent of the land descended or devised to them in the case and in the manner prescribed by law.

SEC. 50. The words "grant," "bargain," and "sell,” in all conveyances hereafter made, in and by which any estate of inheritance, possessory title or fee simple is to be passed, shall, unless restrained by express terms contained in such conveyances, be construed to be the following express covenants, and none other, on the part of the grantor, for himself, his heirs, to the grantee, his heirs and assigns-First. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same real estate, or any right, title, or interest therein, to any person other than the grantee. Second. That such real estate is, at the time of the execution of such conveyance, free from encumbrances, done, made, or suffered by the grantor, or any person claiming under him; and such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.

SEC. 51. All instruments of writing mentioned in this act, now copied in the proper books of record of the several counties in this territory, acknowledged and recorded in accordance with the laws in force and effect at the time such instruments were so acknowledged and recorded, shall, after the passage of this act, be deemed to impart to subsequent purchasers and encumbrancers, and all other persons whomsoever, notice of all such deeds, mortgages, powers of attorney, or other instruments, so far as to the extent the same may be found recorded, copied, or noted in the said books of record.

SEC. 52. This act shall take effect and be in force from and after ifs approval by the governor.

APPROVED, January 16, 1864.

BONDS, DUE BILLS, ETC.

AN ACT Relating to Bonds, Due Bills, &c.

Be it enacted by the Legislative Assembly of the Territory of Idaho, as follows:

SECTION. 1. That all bonds and due bills, and other instruments of writing not negotiable, hereafter made by any person, body politic or corporate, whereby such person promises or agrees to pay any sum or sums of money, or articles of personal property, or acknowledges any sum of money, or articles of personal property, to be due to any other person, shall be taken to be due and payable, and the sum of money or articles of personal property, therein mentioned, shall by virtue thereof be due and payable to the person to whom the bond, bill, or other instrument in writing is made.

SEC. 2. Any such bond, due bill, or other instrument in writing, not negotiable, made payable to any person, shall be assignable by endorsement thereon, under the hand of such person and of his assignee, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee successively.

SEC. 3. Any assignee to whom such sum of money, or personal property, is by such endorsement made payable, or in the case of the death of such assignee, his heirs, executors, and administrators may, in his name, institute and maintain the same kind of action for the recovery thereof, against the person who made and executed such bond, bill, or other instrument in writtng, or against his heirs, executors, or administrators, as might have been maintained against him by the obligee or payee, in the case the same had not been assigned; and in every such action in which judgment shall be given for the plaintiff, he shall recover his damages and costs of suit as in other cases: Provided, That the maker or obligor shall be allowed to set up in defence to the action of an assignee, any

matter which he might have set up to the action of the payee or obligee, where the same has arisen previous to notice of the assignment.

SEC. 4. Every assignor, his heirs, executors, or administrators, of every such note, bond, bill, or other instrument in writing, shall be liable to the action of the assignee thereof, his executors, or administrators, if such assignee shall have used due diligence, by the institution and prosecution of a suit against the maker of such note, bill, or other instrument in writing, or against his heirs, executors, or administrators, for recovery of the money or property due thereon, or damages in lieu thereof; Provided, That if the institution of such suit would have been unavailing, or that the maker had absconded, or left the territory or State where such assigned note, bond, bill, or other instrument in writing became due, or within twenty days thereafter, such assignee, his heirs, executors, or administrators, may recover against the assignor, or his heirs, executors, or administrators, as if due diligence by suit had been used. By "due diligence," shall be understood the institution of suit within sixty days after the maturity of the obligation.

SEC. 5. In any action which may hereafter be commenced in any court in this territory upon any of the instruments in writing mentioned in this act, by the obligee or payee thereof, if any of such instruments was made or entered into without a good or valid consideration, or if the consideration upon which any such instrument was made or entered into has wholly or in part failed, it shall be lawful for the defendant against whom such action shall have been commenced by his obligee or payee, to plead to such want of consideration, or that the consideration has wholly or in part failed; and if it shall appear that any of the aforesaid instruments was made and entered into without a good and valid consideration, or that the consideration has wholly failed, the verdict shall be for the defendant; and if it shall appear that the consideration has failed in part, the plaintiff shall recover in accordance with the equity of the case.

SEC. 6. If any fraud or circumvention be used in obtaining the making or executing of any of the instruments aforesid, such fraud or circumvention may be pleaded in bar to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing any such fraud or circumvention, or any assignee of such instrument.

SEC. 7. In all cases where any of the before mentioned instruments of writing are for the payment or delivery of personal property, other than money, and no particulor place be

specified in such instrument of writing for the payment or delivery thereof, it shall be lawful for the maker of any such instrument of writing to tender, or cause to be tendered, on the day mentioned in such instrument, the personal property therein mentioned, at the place where the obligee or payee of any such instrument resided at the time of the execution thereof: Provided, however, if such property be too ponderous to be easily moved, or if the obligee or payee of such instrument had not, at the time of the execution of such instrument of writing, a known place of residence in the county where the maker resided, then it shall be lawful to tender such personal property at the place where the maker of such instrument resided at the time of execution thereof. Any tender made in pursuance of this section, shall be equally valid and legal, in case any such instrument of writing shall have been assigned in pursuance of the first section of this act, as if no such assignment had been made.

SEC. 8. A legal tender of any such personal property shall discharge the maker of any such instrument from all liability thereon; and the property thus tendered is here declared to be vested in, and belong to the legal owner and holder of any such instrument of writing, and he may maintain an action for the recovery thereof, or for damages, if the possession be subsequently illegally withheld from him: Provided, however, if any such property, so tendered, shall be of a perishable nature, or shall require feeding or other sustentation, and the person owning or holding any such instrument of writing be absent at the time of tendering the same, it shall be lawful for every person making such tender to preserve, feed, or otherwise take care of the same; and he shall have a lien on such tendered property for his reasonable trouble and expense of preserving, feeding, or sustaining such property, until payment be made for such trouble and expense.

SEC. 9. This act to take effect from and after its approval by the Governor.

APPROVED, January 16th, 1864.

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