ART. 53. The notary certifying to any instrument or contract made by a guardian, a dowry, matrimonial gifts, property to be set apart, or property belonging to minors, or any instrument or contract by virtue of which a given property is adjudicated to a widower or a widow in payment of the right of a surviving spouse, shall explain to the party in whose favor, by reason of the instrument, the rights of the legal mortgage are vested, if present at the time, his or her right to demand the execution of a sufficient special mortgage; and he shall explain to the party who is burdened with that obligation, if present at the time, the duty that the law imposes upon him to grant said guaranty, in a proper case, if he possesses mortgageable property. The notary shall also caution the interested parties, that as long as the mortgage be not executed and recorded, the rights of third parties recorded previously will not be prejudiced. Besides, the notary shall state in the same public document, that he has conformed with all the requirements of this article. ART. 54. If the person in whose favor the legal mortgage mentioned in the preceding article is drawn, be a married woman, a minor, a ward, or a person without legal capacity, and a special mortgage be not executed, or if executed should be insufficient, the notary shall report the instrument executed within the eight days next following to the register of deeds of the subdistrict, by means of an official communication containing a short statement of the obligation entered into, names, occupation, status (whether married or single), and the domicile of the contracting parties, and the reply which they have given to the notary's cautions in regard to legal mortgages. ART. 55. A proper legal mortgage may be constituted in every deed by virtue of which a dowry is created, marriage gifts are granted, or personal property distinct from the marriage portion (bienes parafernales) are given to the husband. In case no legal mortgage be constituted, mention must be made of one of the three following facts: That said mortgage will be constituted by a special instrument. That the married woman, being of age and possessed of a dowry, did not demand the corresponding dowry mortgage, although advised by the notary as to her rights in this respect. That the husband has made a declaration under oath, that he does not possess mortgageable property to secure the dowry, gifts, or personal property distinct from the marriage portion (bienes para fernales), accepting at the same time the obligation to mortgage the first real estate he may acquire. ART. 56. In every instrument by virtue of which there is granted a dowry, the amount of which is not determined, in personal property or chattels, the value of all the property shall be stated, mentioning the fact that its valuation is not made for the purposes of a sale, its only object being to fix the amount, the payment of which shall be secured at the proper time by a mortgage. ART. 57. In every instrument by which gifts are given to a woman by reason of her marriage, it must necessarily appear whether such gifts are given as an increase of dowry or not. To this end, the notary shall put the proper questions to the contracting parties, explaining their rights to them in each case: namely, in case the offer be made as an increase of the dowry, it creates a legal mortgage, and in case of the omission of the said statement, the gifts can be recovered only by a personal action. ART. 58. In each deed of dowry by virtue of which real property is being conveyed to the husband, besides the general details, there must be incorporated the following: 1. Whether the marriage has been agreed upon, or has been already celebrated, in the latter case stating the date thereof. 2. The Christian name, family name, the previous status (whether married or single), age, and residence or domicile of the wife. 3. Whether the amount of the dowry is fixed or not. 4. Amount of the dowry and the property constituting it. 5. The value of each estate and of all other property. 6. The statement that the title is conveyed to the husband subject to provisions of the law, but this only in case the amount of the dowry is fixed, and in case the value of the dowry be not fixed, the husband is obliged to make restitution of such of the same real estate as may remain in his power at the time of the dissolution of the marriage. 7. A statement that the notary has explained to the wife her right to demand from her husband a legal mortgage, securing the restoration of her property not previously secured by mortgage, and to the husband his obligation to record the dowry, and to mortgage its real estate for its security, if its amount be fixed. 8. He will certify to its proper delivery in case it were made at the time, or otherwise, the declaration of having previously received the property, together with a verbatim copy of the documents certifying to such delivery, if made before the celebration of the marriage or within the first year following. ART. 59. The mortgage of the dowry, besides the details included in the foregoing article, and those that every voluntary mortgage must contain, shall also state the following: 1. The Christian name, the family name, and the representation of the person who demanded the execution of said mortgage, or a statement that the husband has voluntarily executed the mortgage. 2. A short account of any judicial proceedings which may have been instituted in the premises, with a verbatim copy of the judg ment. 3. A declaration from the person who possesses a legal right to make it, that the mortgage is deemed sufficient, and the agreement to accept it. ART. 60. The deeds increasing the dowry shall conform in regard to their wording to the rules established in the preceding articles for the dowry instruments. ART. 61. Every public instrument by virtue of which there is being acquired property to be set apart, shall necessarily state this fact, and also that the grantee has been cautioned as to his obligation to secure by mortgage the title and preservation of said property. The notary shall besides give notice to the register of deeds, in the manner provided by article 54 of these regulations, if the person having the right to the mortgage, be of age. ART. 62. The mortgage for securing property to be set apart shall be executed in the proceedings as provided for by the mortgage law and its regulations, and by means of an instrument which must be signed by the person whose duty it is to secure the mortgage, if the latter be of age; and if not of age, it shall be signed by the person soliciting the execution of said mortgage, and by the certifying officer. The mortgage, having been thus drawn, must be approved by the judge who had charge of the record. ART. 63. The instrument mentioned in the preceding article shall contain, besides all the details of the voluntary mortgage, the following: 1. The date when the father or mother contracted a new marriage, or the date of birth of an illegitimate child, and in a proper case the date of the acceptance of the property by the ascendant referred to in article 199 of the mortgage law. 2. The Christian name and the family name of the deceased spouse, or that of the descendant in a proper case and the date of his death. 3. The names and the ages of each and every child or relative having a right to property to be set apart. 4. The title upon which said right is based. 5. The description and value of the property to be set apart. 6. The Christian name, the family name, age, and residence or domicile of the person who may have solicited the execution of the mortgage, if the father, mother, or ascendant shall have failed to do so voluntarily. 7. The statement whether or not the mortgage offered be sufficient, and in the latter case an affidavit that the father, mother, or ascendant does not possess other mortgageable property, together with an obligation of the above-stated persons to mortgage the first realty acquired. ART. 64. Every public instrument, by virtue of which a minor acquires property, the administration of which belongs to the father or mother, must necessarily state such fact, and also that the contracting parties have been informed of their duty to record said real estate in such capacity. In a proper case the father or the mother shall secure the remainder of the property by mortgage, if either should remarry. ART. 65. When the father or mother are parties to the instrument, by virtue of which a minor acquires personal property or chattels to be managed by the said father or mother, they may constitute in the same instrument, the mortgage that secures the preservation of the said property. ART. 66. Mortgages of property of minors shall state all the facts which a voluntary mortgage must contain, and also the following: 1. Age of the minor, and status (whether married or single). 2. The source from which the property comes. 3. Description of the property and its value, or the approximate value, for the purpose of executing the mortgage. 4. That the mortgage was voluntarily executed by the father or mother, or by virtue of a judicial decree, and at whose instance. 5. That the mortgage is or is not sufficient, and in the latter case the declaration of the father or mother that they do not possess other mortgageable property, together with the obligation of mortgaging the first real estate acquired. ART. 67. The mortgage arising from a guardianship shall state, besides the fact of the voluntary mortgage, the following: 1. The Christian name, family name, age, status (whether married or single), occupation, and the residence or domicile of the guardian. 2. The name of the person who appointed him. 3. The order making said appointment and its date. 4. The character of the guardianship. 5. The fact that there has been no exemption from the obligation to give bond, or that although there was such exemption, the family council had deemed it necessary to demand it. 6. The amount of the principal, income, and benefits belonging to the orphan or a person without legal capacity, separating the part consisting of real estate and that consisting of other property. 7. The amount of the bond required. 8. The list of the real estate offered as security, the value of each, and their incumbrances, and the deeds of the last transfer, with reference also to the title deeds and certificates of the registry, and of such appraisements as may have been made. 9. The execution of a mortgage, for the amount of the bond as fixed, and the designation of the amount for which each estate is mortgaged, according to the apportionment that may have been made. 10. Copy of the resolution of the family council approving the bond. FINAL DISPOSITION. ART. 68. Officers violating any of the provisions contained in these regulations, shall be called to account and punished by their immediate superiors, in accordance with the laws and regulations, and at such time as the commission of said violation may come to the knowledge of said superiors. Notaries will besides be subject to the responsibility imposed by article 22 of the mortgage law. Approved by her Majesty. (Signed) Madrid, August 13, 1893. MAURA. |