[1881 S., p. 99. In force April 14, 1881.] 4375. Certificate as to liens. 1. An applicant for a loan of a part of the common school fund or of the congressional township school fund shall file with the Auditor of the county the certificate of the Clerk and Recorder of the county, that there is no incumbrance on the land offered as a security for the loan in either of said offices: Provided, That where the records, books, and papers of the Clerk's office have been destroyed by fire, the Clerk's certificate shall only state the fact and date of such destruction, and that there is no incumbrance on said land appearing from any of the records, books, and papers then on file in his office, and that there is no incumbrance on said land in his office of which he has any knowledge. The applicant shall also, in such case, execute to the State of Indiana, for the benefit of the common school fund, a bond, with one or more freehold sureties to the approval of the Auditor, conditioned for the payment of so much of the loan as may be lost by reason of any incumbrance or lien upon the land which was evidenced by he records, books, or papers in the Clerk's office which have been destroyed. [1865, p. 3. In force March 6, 1865.] 4376. Oath of applicant. 81. Such applicant shall make oath that there is no incumbrance or better claim, that he knows of, and that the abstract of the title presented by him is, as he believes, a true one. 4377. Time of loan. 82. No loan shall be made for a longer term than five years. 4378. Limit of amount. 83. The sum loaned shall not exceed onehalf of the appraised value of the premises proposed to be mortgaged, clear of all perishable improvements: Provided, That where such premises are situated in a county other than that in which such fund may belong, the sum loaned thereon shall not exceed one-fourth of the appraised value of such premises, exclusive of perishable improvements. Such value to be determined by the existing laws of the State of Indiana. It is hereby made the duty of the Board of Commissioners of each county of this State, at their first regular session after the taking effect of this act, to appoint in each Commissioner's district of the county three reputable freeholders, any two of whom, without the concurrence of the third, may act as school fund appraisers, whose duty it shall be upon oath to make all the appraisements of lands in their respective districts, required in this act or in the act of which this is amendatory. Said appraisers, or any of them, may be removed and new ones appointed by said Board at any regular or special session, and in case any of such appraisers is at any time disqualified, by reason of kinship or interest, from acting, the appraisement shall be made by the other appraisers, who in case of a disagreement shall select a third appraiser. Said appraisers shall receive the same compensation for making each appraisement, and be paid in the same manner as such appraisers are now paid. [As amended, by act in force July 18, 1885; S., p. 196. 4379. Acknowledgments and oaths. 84. The Auditor shall have the power to administer all oaths and take all acknowledgments required by this act. 4380. Record of mortgages-Priority. 85. Mortgages taken for such loans shall be considered of record from the date thereof, and shall have priority of all mortgages or conveyances not previously recorded, and all other liens not previously incurred, in the county where the land lies. 4381. Auditor's duty. 86. The Auditor shall cause such mortgages to be recorded immediately, retaining the cost of recording out of the money borrowed. 1. If the mortgage be recorded, not being acknowledged or proved as our general laws require to admit mortgages to record in the Recorder's office, such record is no notice to subsequent bona fide purchasers. But the act of 1843, still in force (R. S. 1843, p. 245), requires that such mortgages shall be deemed recorded from their date; and this is notice.-Deming v. State, 23 Ind. 416. 4382. Fees. 108. The following fees only shall be charged in cases of mortgage for loans: To each appraiser, fifty cents; for recording mortgage, one dollar; for drawing mortgage, one dollar; for making borrower's affidavit, ten cents; for Clerk's certificate, fifty cents; for Recorder's certificate and examining title, each one dollar; which shall be paid by the borrower. 4383. Interest unpaid- Auditor's duty. 87. On failure to pay any installment of interest when the same becomes due, the principal sum shall forth with become due and payable, and the Auditor may proceed to collect the same by suit on the note, or by sale of the mortgaged premises. He may also, by suit, recover the possession of the mortgaged premises before sale thereof; and he shall, on the fourth Monday in March, annually, offer for sale all mortgaged lands on which payments of interest are due on the first day of January and unpaid on the day of sale. 1. In selling lands, the Auditor must strictly follow the requirements of the stat utes upon the subject. Where sale is made to make a greater sum than is due, the sale is void; and where the borrower has made a payment of interest, and failed to file the Treasurer's receipt with the Auditor, it will not excuse the Auditor for selling to make a sum greater than is really due.-Key v. Ostrander, 29 Ind. 1; Arnold &. . Gaff, 58 id. 543. 2. The law in force at the time of sale, providing the method, notice, and other elements of remedy, governs the sale.-Webb v. Moore, 25 Ind. 4; Jones e. Hopkins. 26 id. 450; Moor v. Seaton, 31 id. 11. 3. After obtaining judgment and foreclosure by suit, the mortgage is inerged; the Auditor can not, then, sell under it, and such sale is a nullity.-Ferris e. Cravens, 65 Ind. 262. 4383a. Auditor's default - Penalty. 4. It shall be the duty of the Auditor of each county, in case default shall be or has been made in the payment of principal or interest of any school fund loan, to at once proceed to enforce the collection of such principal or interest, as the case may be; and any Auditor who shall fail or refuse to comply with the requirements of this section, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding one thousand dollars. [Act in force July 18, 1885; S., p. 197.] 4384. Fund to be specified. 88. The mortgage may be, in substance, as follows; and the Auditor shall specify therein whether the same belongs to the common school fund or to the congressional township fund, and, if the latter, the particular township or townships whose funds are thus loaned. —, in 4385. Form of mortgage. 89. I, A. B., of the county of the State of Indiana, do mortgage to the State of Indiana, for the use of [here describe the fund out of which the loan was made], all [here describe the land], for the payment of dollars, with interest at the rate of eight per cent. per annum, payable annually in advance, according to the conditions of the note hereto annexed. 4386. Form of note. 90. The note accompanying the same may be in substance as follows, to-wit: I, A. B., promise to pay to the State of Indiana, for the use of [here recite the particular fund], on or before the sum of dollars, with interest thereon at the rate of eight per cent. per annum in, advance. commencing on the day of 18-; and do agree that, in case of failure to pay any installment of interest when the same shall become due, the principal sum shall become due and payable, together with all arrears of interest; and on failure to pay such principal or interest when due, two per cent. damages shall be collected, with costs, and the premises mortgaged may be sold by the County Auditor for the payment of such principal sum, interest, damages, and costs. 4387. Warrant to borrower. 91. On making loan of any fund, the Auditor shall draw his warrant in favor of the borrower upon the County Treasurer, who shall charge it to the proper fund. 4388. Payments-Quietus. 92. All loans refunded and all interest shall be paid to the County Treasurer, and his receipt shall be filed with the County Auditor, who shall give the payer a quietus therefor, and make proper entries. 4389. Indorsements and satisfaction. 93. Whenever the amount due on any mortgage shall be paid, and the Treasurer's receipt therefor filed, the Auditor shall indorse on the note and mortgage that the same has been fully satis fied, and surrender the same to the person entitled thereto; and, on production of the same thus indorsed, the Recorder shall enter satisfaction upon the record. 4390. Suit for deficiency. 94. In all cases when the mortgaged premises shall fail to sell for a sum sufficient to satisfy the principal and interest of the loan made, and the damages accrued by reason of such fail ure, and costs, the County Auditor shall bring suit on the notes executed by the mortgagor; and whenever judgment shall be rendered thereon, no appraisement of property shall be allowed on execution issued on such judgment. 1. The County Auditor is the proper relator in a suit to recover school funds loaned. -Scotten v. State, 51 Ind. 52. 4391. Notice of sales. 95. Before sale of mortgaged premises, the Auditor shall advertise the same in some newspaper printed in the county where the land lies, if any there be (otherwise, in a paper in the State nearest thereto), for three weeks successively, and, also, by notice set up at the court-house door and in three public places in the township where the land lies. 4392. Manner of sale- Surplus. 96. At such sale (which shall be held at the court-house door), the Auditor shall sell so much of the mortgaged premises to the highest bidder, for cash, as will pay the amount due for principal, interest, damages, and costs. When less than the whole tract mortgaged shall be sold, the quantity sold shall be taken in a square form, as nearly as possible, off the northwesterly corner of said tract; and when less than the whole of any in-lot or out-lot of any town or city shall be sold, the part sold shall be laid out and taken off, so that it shall extend from the main or principal street or alley on which the said lot fronts, to the rear thereof, to divide the same by a line as nearly parallel with the boundaries of said lot as practicable; and if less than the whole is sold, the Auditor, in his notice of sale, shall indicate off of which side or end of said lot the part to be sold shall be taken; and if more than one tract of land is included in the mortgaged premises, the Auditor shall elect which tract or tracts shall be sold, saving to the mortgagor, if practicable, the tract on which his house is located. If a tract of land so mortgaged, and liable to be sold to satisfy the mortgage, can not be divided without materially diminishing the value of such tract; or if any in-lot or out-lot be indivisible, by reason of extensive buildings or other improvements thereon, the Auditor may sell the whole thereof, and, after paying the amount due for principal, interest, damages, and costs out of the purchase-money, shall pay the balance, if any, to the mortgagor; and if the Auditor sell any part of a tract of land, out-lot, or in-lot for more than the amount of principal, interest, damages, and costs, the excess, if any, shall be paid to the mortgagor. 1. In a suit to set aside a sale made by the Auditor, where the mortgage debt, penalty, and costs aggregated one hundred and fifty-two dollars and twenty cents, though the land was worth four thousand dollars, and could have been divided without materially diminishing its value, it was held to be immaterial that he did not, at the sale, offer any part in the form of a square or otherwise off of the northwest corner thereof. -Arnold v. Gaff, 58 Ind. 543. 4393. Auditor's bid. 97. In case of no bid for the amount due, the Auditor shall bid in the same on account of the fund, and, as soon thereafter as may be, shall sell the same having first caused it to be appraised by three disinterested freeholders of the neighborhood, upon the following terms, viz.: Onethird cash in hand, and the balance in four equal instalments due in one, two, three and four years respectively from the day of sale, bearing interest at six per cent per annum, payable annually in advance; but, no such sale shall be for a less sum than the appraised value thereof. [As amended, 1889 S., p. 314. In force March 9, 1889. 1. The Auditor has no power, hereunder, to sell for cash, nor without first having the land appraised.- Ferris v. Cravens, 65 Ind. 262. 4394. Sale of lands bid in. 98. Lands heretofore bought in on account of the fund, which have been appraised, shall be sold in like manner; and if, upon sale of any such land, a sum is realized which is more than sufficient to pay the principal, interest, damages, and costs, the overplus shall be paid to the original mortgagor, his heirs or assigns, when collected. 4395. Deed by Auditor. 99. Upon full payment being made for such lands, the deed therefor shall be executed by the County Auditor, and shall be entered in the record of the Board of County Commissioners before delivery. 1. A recording of the deed in the Commissioner's record is a condition precedent to its delivery, and a necessary step in the sale.- Arnold v. Gaff, 58 Ind. 543. 4396. Statement of sales. 100. At the public sale at the courthouse door provided for in this Act, the County Treasurer shall also attend, and make a statement of such sales, which shall be signed by the Auditor and Treasurer, and, after being recorded in the Auditor's office, shall be filed in the Treasurer's office; and such record, or a copy thereof, authenticated by the Auditor's or Treasurer's certificate, shall be received as evidence of the matters contained therein. 1. This statement must be signed by both Auditor and Treasurer, or the sale will be void. Arnold v. Gaff, 58 Ind. 543. 4397. Title in State without deed. 101. When any land is laid [bid] off by the Auditor at such sale, no deed need be made therefor to the State; but the statement of such sale, and the record thereof, shall vest the title in the State, for the use of the proper fund. 4398. Annual report. 103. County Auditors and County Treasurers shall annually report, in writing, to the Boards of County Commissioners of the respective counties, at the June sessions of said Boards, relative to the school-fund held in trust by said counties, distinguishing, in said reports, between the congressional township and common-school funds; indicating the amount thereof; the additions to them within the current year then ending; the sources from whence such additions are derived; the condition of them as to their safety, giving the amount thereof safely invested, unsafely invested and uninvested, and loss, at the date of said reports; giving also the amount of interest collected upon said funds within the year then ending, and the amount then due and unpaid. 4399. Duty of Boards. 104. The Boards of County Commissioners shall, annually, at their June sessions, in the presence of the Auditors and Treasurers, examine said reports, the accounts, and proceedings of said offi cers in relation to said funds, and the revenue derived from them. They shall compare with said reports, the cash, the notes, mortgages, records, and books of said officers, with a view to ascertain the amount of said funds and their safety; and do whatever may be necessary to secure their preser vation and the prompt payment of the annual interest thereon as the same becomes due; and make up to said funds losses which have accrued or may accrue. 4400. Board's report. 105. Each Board of County Commissioners, at said session, shall make out a report, in writing, of the result of such examination, showing First The amounts of said funds at the close of the last year. Second. The amount added from sale of land within the year. Third. The number of acres of unsold congressional township school lands, and the approximate value thereof. Fourth. The amount added from fines and forfeitures. Fifth. The amount added by the commissioners of the sinking fund. Sixth. The amount added from all other sources. Seventh. The total amount of the funds. Eighth. The amount refunded within the year. Ninth. The amount re-loaned within the year. Eleventh. The amount unsafely invested. Twelfth. The amount uninvested. Thirteenth, The amount of fund lost since 1842. Fourteenth. The amount of interest collected within the year. Fifteenth. The amount of interest delinquent. And in such report, said Board shall distinguish between the congressional township fund and the common school fund; and in its account of the interest or revenue derived from said funds, it shall observe the same distinction. LAL 4401. Disposition of report. 106. Such report shall be entered un the records of said Board; and copies thereof, signed by the members of the Board, the Auditor, and Treasurer, shall be transmitted to the Auditor of State and the Superintendent of Public Instruction. 4402. Apportionment of loans. 152. Where the whole of the school funds of a county have been loaned, the Auditor shall apportion to each congressional township a sufficient number of mortgages to cover the principal of its congressional township fund; and where a part of the school funds only are loaned, the Auditor shall so apply a proportional amount; and the cash on hand, when loaned, shall be for the benefit of the congressional townships, respectively, to the amount of the entire principal of its congressional township fund; and in all loans made after the taking effect of this Act, the note and mortgage shall specify the particular fund borrowed. [1879 S., p. 102. In force March 29, 1879.] 4403. Miscellaneous school fund account. I. It shall be the duty of the Auditor in each county to open an account with the congressional township school fund, to be styled the "Miscellaneous school fund account." He shall transfer to said account, from each township account, all sums on hand at any time when a loan is solicited (provided the aggre gate sums will equal the amount sought to be borrowed), and may lend such combined sums in one loan; which loan shall be numbered in consecutive order, and the securities shall each and all be indorsed with the number as "Miscellaneous Loan No. —," as the number may be; and he shall enter in the miscellaneous account, on the debit side, separately, the sums taken from the account of the several townships, so as to show the corresponding number of the loan, and credit the several township accounts with the same sum and the like number of loan. Thence on, as interest accrues and is paid in on such loan, he shall debit the several township accounts with the pro rata portion of such interest accruing to each; and when such loan is paid, he shall distribute back to the township accounts the several sums originally transferred from each, and debit the miscellaneous account |