§ 321 — Recording discharge of mortgage

§ 321. Recording discharge of mortgage. 1. The recording officer shall\nmark on the record of a mortgage the word "discharged" when there is\npresented to him a certificate or certificates signed as hereinafter\nprovided, and acknowledged or proved and certified in like manner as to\nentitle a conveyance to be recorded, specifying that the mortgage has\nbeen paid or otherwise satisfied and discharged.\n (a) When it does not appear from the record that any interest in the\nmortgage has been assigned, the discharge shall be signed by the\nmortgagee or by his personal representative.\n (b) When it appears from the record that the mortgage has been\nassigned, whether or not the assignment was made as collateral security,\nthe discharge shall be signed by the person who appears from the record\nto be the last assignee thereof or by his personal representative.\n (c) When the mortgage or an assignment thereof names two or more\npersons as mortgagees or assignees, the discharge shall be signed by the\nperson or persons designated by the mortgage or assignment to receive\npayment of the mortgage debt or to give full acquittance and discharge\ntherefor. When no such person or persons are designated by the mortgage\nor assignment, the certificate of discharge shall be signed by all of\nthe persons named, in the mortgage or assignment, as mortgagees or\nassignees, as the case may be, or by their personal representatives, if\nthe mortgage or assignment (i) specifies their respective interest in\nterms of a sum of money, or in terms of a fraction or percentage, or\n(ii) states that such persons shall share equally in, or shall have\nequal shares in the mortgage, or (iii) describes such persons as tenants\nin common of the mortgage. When it appears from the record that the\nmortgage is held by trustees, the certificate of discharge shall be\nsigned by a majority of such trustees or of the survivors of them or by\nthe survivors or survivor of them, unless the instrument creating the\ntrust provides otherwise. Except as required above, the discharge may be\nsigned by any one of the persons named in the mortgage or assignment, as\nmortgagees or assignees, as the case may be, or by the personal\nrepresentative of the last survivor of them. If the mortgage or\nassignment states that the persons named therein as mortgagees or\nassignees shall hold the mortgage jointly, or describes such persons as\njoint tenants or tenants by the entirety of the mortgage, or expressly\ncreates a right of survivorship among them, the discharge may be signed\nby any one of such persons or by the personal representative of the last\nsurvivor of them notwithstanding that the mortgage or assignment\nspecifies their respective interests in the mortgage or states that they\nshall share equally or have equal shares therein.\n (d) When the mortgage has been partially assigned, the certificate of\ndischarge shall be signed by all of the persons, or their personal\nrepresentatives, who in the aggregate are the holders of all portions of\nthe mortgage, including each partial assignee, and the assignor in case\nany portion of the mortgage has not been assigned; provided, however,\nthat if any partial assignment names two or more persons as assignees,\nthe person or persons who may sign the certificate discharging such\npartial interest shall be determined in accordance with the provisions\nof paragraph (c) of this subdivision.\n (e) Whenever two or more persons are required to execute a certificate\nof discharge as provided in this subdivision, there may be presented in\nlieu of such certificate, separately executed certificates of discharge\nas to the respective interests of each in the mortgage so that together\nthe several certificates purport to discharge the entire mortgage.\n (f) In place of any of the persons specified in paragraphs (a), (b),\n(c) or (d) of this subdivision, a certificate of discharge of the\nmortgage or of any interest therein may be signed (i) by an agent who\nhas been authorized by any such person to demand or receive payment or\nto give a certificate of discharge of the mortgage by a power of\nattorney, provided such power of attorney is of record in the office\nwhere the mortgage is recorded, and no instrument of revocation has been\nrecorded; or (ii) by any person in whom title to such mortgage or to\nsuch interest, or authority to act on behalf of or in exercise of the\nright or power of the holder of such mortgage or of such interest is\nvested, in a fiduciary capacity, by virtue of an order or decree of a\ncourt having jurisdiction thereof, including, but not limited to, the\nguardian of a minor, the committee of an incompetent person, or the\nconservator of a conservatee, whether domestic or foreign, and a\nreceiver in bankruptcy or trustee in bankruptcy. A certificate executed\nby any person specified in clause (ii) of this paragraph shall recite\nthe name of the court and the venue of the proceedings in which his\nappointment was made, or the order or decree vesting him with such title\nor authority was entered.\n (g) If the mortgage is stated in the certificate of discharge to have\nbeen taken by the noncitizen property custodian under and pursuant to\nthe trading with the enemy act adopted by the United States congress,\nand approved October sixth, nineteen hundred sixteen, or any act\namendatory thereof, or supplemental thereto, such certificate may be\nexecuted by such noncitizen property custodian or such person as the\npresident may appoint to give full acquittance and discharge for money\nor property belonging to an enemy or ally of an enemy which may be\nconveyed, assigned, delivered or transferred to said noncitizen property\ncustodian, with like effect as if the same had been executed by the\nmortgagee, or the personal representative or assignee of such mortgagee.\nSuch certificate may be recorded, and such certificate, the record\nthereof and a certified copy of such record may be introduced in\nevidence in all courts of this state.\n 2. (a) The recording officer shall record and file such certificate or\ncertificates together with the certificates of acknowledgment or proof,\nand shall note on the record of the mortgage the book and page\ncontaining such record of such certificate or certificates or the serial\nnumber of such record in the minute of the discharge of such mortgage,\nmade by the officer upon the record thereof. The provisions of this\nparagraph shall not apply to the county of Suffolk, if the block method\nof index is in use, or a separate index of satisfactions recorded is\nmaintained.\n (b) The recording officer shall also record every other instrument\nrelating to a mortgage which is presented to him, acknowledged or proved\nin like manner as to entitle a conveyance to be recorded, including\ncertificates purporting to discharge a mortgage or an interest therein\nwhich are signed by persons other than those specified in the first\nsubdivision of this section, and also including, but not limited to,\nassignments, releases, partial discharges, reductions, estoppel\ncertificates, extensions, discharges of partial interest and partial\ndischarges of partial interest, regardless by whom any such instrument\nhas been executed. When any such instrument has been recorded, the\nrecording officer, except in counties where the block method of indexing\nis in use, or in Suffolk county, if a separate index of said instruments\nis maintained, shall enter a minute upon the record of the mortgage to\nwhich such instrument relates, indicating the nature of such instrument\nand the book and page where it has been recorded or the serial number of\nsuch record.\n 3. Every certificate presented to the recording officer shall be\nexecuted and acknowledged or proved in like manner as to entitle a\nconveyance to be recorded. If the mortgage has been assigned, in whole\nor in part, the certificate shall set forth the date of each assignment\nin the chain of title of the person or persons signing the certificate,\nthe names of the assignor and assignee, the interest assigned, and, if\nthe assignment has been recorded, the book and page where it has been\nrecorded or the serial number of such record; or if the assignment is\nbeing recorded simultaneously with the certificate of discharge, the\ncertificate of discharge shall so state. If the mortgage has not been\nassigned of record, the certificate shall so state.\n No certificate presented to the recording officer shall purport to\ndischarge more than one mortgage, except that one certificate may\npurport to discharge two or more mortgages where the certificate states\nthat one of such mortgages corrects, perfects or modifies the other\nmortgage or mortgages, or spreads the lien of the other mortgage or\nmortgages over the property subject to the lien of such mortgage, or\nconsolidates the lien of the other mortgage or mortgages with the lien\nof such mortgage to constitute a single lien, or where the certificate\nstates that the liens of the mortgages which the certificate purports to\ndischarge have been so spread or so consolidated by a separate\ninstrument and such instrument has been recorded; provided that in such\ncase the certificate of discharge shall identify and describe each\nmortgage which it purports to discharge, in a separate paragraph, in the\nsame manner and with the same particularity, and setting forth the same\ninformation with respect to assignments thereof, as would be required\nfor a separate certificate discharging that mortgage, and shall also\nstate, in a separate paragraph for each instrument, the date of any such\nseparate instrument by which the liens of the mortgages have been spread\nor consolidated, the names of the parties thereto, and the book and page\nwhere it has been recorded or the serial number of such record. In any\nsuch case, except where otherwise expressly provided by law, the fee or\nfees which the recording officer is entitled to receive for filing and\nentering a certificate of discharge of a mortgage and examining\nassignments of such mortgage shall be payable with respect to each\nmortgage which the certificate purports to discharge, to the same extent\nas if a separate certificate of discharge had been filed for such\nmortgage.\n 4. After the record of the mortgage has been marked with the word\n"discharged," the recording officer shall make and deliver to any person\ntendering the lawful fees therefor, his certificate setting forth the\nnames of the mortgagor and the mortgagee, the book and page at which,\nthe date when such mortgage was recorded, and the date on which the\nrecord of such mortgage was so marked, except in a county where\nrecording is done by microphotography or photostating in the manner\npermitted by law, in which case, after microphotography or photostating,\nsuch certificate of discharge and the certificates of its acknowledgment\nor proof shall, in lieu of filing as provided in paragraph (a) of\nsubdivision two of this section, be returned to the party leaving same\nfor record.\n 5. The term "personal representative" as used in this section shall\ninclude the following:\n (a) An executor, administrator or voluntary administrator or one of\ntwo or more executors, administrators or voluntary administrators,\nwhether domestic or foreign, including the public administrator, and an\nancillary administrator appointed in this state. A certificate executed\nby any such personal representative shall recite the name of the court\nand the venue of the proceedings in which his letters testamentary or of\nadministration were issued.\n (b) All of the distributees of a person dying intestate for whom no\nadministrator shall have been appointed, provided that two years shall\nhave elapsed since the date of death of such intestate. A certificate\nexecuted by such distributees shall recite the date of death of the\nintestate, his place of residence at the time of death, the fact that he\ndied intestate, that no administrator has been appointed and that they\nconstitute all the distributees of the intestate.\n 6. The provisions of this section authorizing the recording officer to\nmark on the record of a mortgage the word "discharged" shall not be\ndeemed to enlarge, diminish or alter the legal effect which a\ncertificate executed by any person or persons, or any payment made by\nthe mortgagor or other transaction with respect to the mortgage or the\nmortgage debt, would otherwise have upon the rights of the mortgagor or\nof any person claiming a right or interest in the mortgage, the mortgage\ndebt or the property subject to the mortgage.\n 7. In a county in which recording is accomplished by microfilm process\nand in which a block index of mortgages is also maintained it will not\nbe necessary to mark the record of the mortgage "discharged", but it\nwill be deemed sufficient compliance with this section if there is\nentered upon the block index of such mortgage the date of filing and the\nserial number of the certificate effecting the discharge.\n 7-a. If in any county, recording is accomplished by microfilm process\nand a separate index for satisfactions recorded is maintained or in\nwhich a block index of mortgages is also maintained it will not be\nnecessary to mark the record of the mortgage "discharged", but it will\nbe deemed sufficient compliance with this section if there is entered\nupon the index of such mortgage the date of filing and the serial number\nof the certificate effecting the discharge.\n 8. Certificates of discharge of mortgage and certificates of their\nacknowledgment or proof heretofore or hereafter recorded and filed, may\nbe returned personally or by mail to the party leaving same for record\nor destroyed after microfilming or photostating where proper indices are\nmaintained.\n