(a) Every mortgage of real estate, containing therein a power of sale upon default being made in any condition thereof, may be foreclosed by advertisement within ten (10) years after the maturing of such mortgage or the debt secured thereby, or after the recording thereof, in the cases and in the manner hereinafter specified.
(b) The time within which such proceeding may be commenced under the power of sale shall begin to run:
(i) As to any mortgage executed after May 21, 1945, from the date of such mortgage, unless the maturity of the debt or obligation secured by such mortgage be clearly stated in or is otherwise readily ascertainable from the provisions of such mortgage;
(ii) (A) As to any mortgage executed prior to May 21, 1945, at the latest of the following dates:
(I) The tenth anniversary of the maturity of the debt or obligation secured by such mortgage if clearly stated in or otherwise readily ascertainable from the provisions of the mortgage;
(II) The tenth anniversary of the recording of the mortgage if no such maturity date is clearly stated in or readily ascertainable from the provisions of the mortgage;
(III) The stated, renewed, or extended maturity date recorded on or before December 31, 1971, in the manner provided in subdivision (B)(II) of this paragraph.
(B) The owner and holder of any debt or obligation secured by a mortgage executed prior to May 21, 1945, the maturity date of which either:
(I) Is not clearly stated or otherwise readily ascertainable; or
(II) Has been renewed or extended by agreement, payment, or other act of the debtor, may, on or before December 31, 1971, record in the office of the county clerk in the county in which such real estate is located either: (1) An agreement signed and acknowledged by the debtor as a conveyance of real estate, stating the agreed, renewed or extended maturity date of such debt or obligation; or (2) An affidavit of the owner and holder of such debt or obligation, stating such maturity date and the date, form or manner of the agreement, payment or other act of the debtor fixing such date.
(c) No mortgage in which the maturity of the debt or obligation is not clearly stated or otherwise readily ascertainable, which was recorded on or before May 21, 1945, and for which no stated, renewed or extended maturity date is recorded on or before December 31, 1971, may be foreclosed by advertisement after December 31, 1971; and no such mortgage recorded after May 21, 1945, may be foreclosed by advertisement commenced more than ten (10) years after the date of such recording.
(a) To entitle any party to give a notice as hereinafter prescribed and to make such foreclosure, it is requisite:
(i) That some default in a condition of such mortgage has occurred by which the power to sell became operative;
(ii) That no suit or proceeding has been instituted at law to recover the debt then remaining secured by such mortgage, or any part thereof, or if any suit or proceeding has been instituted, that the same has been discontinued, or that an execution upon the judgment rendered therein has been returned unsatisfied in whole or in part;
(iii) That the mortgage containing the power of sale has been duly recorded; and if it has been assigned, that all assignments have been recorded; and
(iv) That written notice of intent to foreclose the mortgage by advertisement and sale has been served upon the record owner, and the person in possession of the mortgaged premises if different than the record owner, by certified mail with return receipt, mailed to the last known address of the record owner and the person in possession at least ten (10) days before commencement of publication of notice of sale. Proof of compliance with this subsection shall be by affidavit.
34-4-104. Publication and service of notices; generally.
(a) Notice that the mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given by publishing the notice for four (4) consecutive weeks, at least once in each week, in a newspaper printed in the county where the premises included in the mortgage and intended to be sold, or some part of them, are situated, if there be one; and if no newspaper be printed in the county, then notice shall be published in a paper printed in the state and of general circulation in the county. Prior to first date of publication, a copy of the notice shall be served by certified mail with return receipt requested upon the record owner, the person in possession of mortgaged premises, if different than the record owner, and all holders of recorded mortgages and liens subordinate to the mortgage being foreclosed, which appear of record at least twenty-five (25) days before the scheduled foreclosure sale. The notice shall be sent to the last known address for the addressee, which shall be the address set forth in the mortgage or lien filed of record unless another address has been recorded in the real estate records or has been provided to the foreclosing mortgagee or lienholder. Proof of compliance with this section shall be made by affidavit of an authorized representative of the foreclosing mortgagee or lienholder. A person or entity who acts in reliance upon the affidavit without knowledge that the representations contained therein are incorrect shall not be liable to any person for so acting and may assume without inquiry the existence of the facts contained in the affidavit.
(b) If there are sale proceeds in excess of the amount necessary to pay the foreclosing mortgagee, judgment creditor or other lienor in full, then within ten (10) business days following the sale of real estate by foreclosure, the foreclosing mortgagee or lienholder shall serve a copy of the sale results to the record owner of the mortgaged premises and all holders of recorded mortgages and liens subordinate to the mortgage or lien being foreclosed. Sale results shall be sent by certified mail with return receipt requested to the last known address for the addressee, which shall be the address set forth in the mortgage or lien filed of record unless another address has been recorded in the real estate records or has been provided in writing to the foreclosing mortgagee or lienholder. The sale results shall include the amount due the foreclosing mortgagee or lienholder as of the date of sale, the name of the successful bidder and the amount of the successful bid. If the certificate of sale awarded to the successful bidder includes the required information, the foreclosing mortgagee or lienholder may comply with this section by serving a copy of the certificate of sale.
(a) Every such notice shall include:
(i) The names of the mortgagor and of the mortgagee and the assignee of the mortgage if any;
(ii) The date of the mortgage and when recorded;
(iii) The amount claimed to be due thereon at the date of the notice;
(iv) A description of the mortgaged premises, conforming substantially with that contained in the mortgage;
(v) The time and place of sale; and
(vi) A statement that "The property being foreclosed upon may be subject to other liens and encumbrances that will not be extinguished at the sale and any prospective purchaser should research the status of title before submitting a bid."
34-4-106. Time, place and manner of sale generally;
mortgagee, judgment creditor or lienor shall be present or waive. The sale shall be at public vendue, between the hour of ten (10:00) o'clock in the forenoon, and five (5:00) o'clock in the afternoon, at the front door of the courthouse, or the place of holding the district court of the county within the county in which the premises to be sold, or some part of them, are situated, and shall be made by the person appointed for that purpose in the mortgage or by the sheriff or deputy sheriff of the county, to the highest bidder. The sheriff or deputy sheriff shall not hold the sale unless the foreclosing mortgagee, judgment creditor, other foreclosing lienor or an authorized agent of the foreclosing party is present at the sale or has previously waived to the sheriff conducting the sale the right to appear and bid at the sale. The sheriff conducting the sale shall not be considered to be the authorized agent of the foreclosing party unless the foreclosing party has given the sheriff a specified opening bid to be presented by the sheriff on behalf of the foreclosing party and the sheriff actually presents the opening bid. Any foreclosure sale conducted without complying with the terms of this section is void, in which case the mortgage, power of sale, judgment or other lien which is the subject of the voided sale is not extinguished or exhausted, but may be properly foreclosed in a subsequent foreclosure sale in compliance with applicable law.
34-4-107. Manner in which distinct tracts or lots sold.
If the mortgaged premises consist of distinct tracts or lots the foreclosing mortgagee may offer for sale separately sufficient tracts or lots as shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest and costs and expenses allowed by law, or the foreclosing mortgagee may offer all such distinct tracts or lots to be sold as a whole.
34-4-108. Mortgagee may purchase; by whom sale made;
mortgagee, judgment creditor or lienor shall be present or waive. The mortgagee, his assigns, or his or their legal representatives may fairly and in good faith, purchase the premises sold upon foreclosure of any mortgage by advertisement under power of sale or any part thereof, at the sale; and whenever the mortgage shall provide for the mortgagee to sell the premises at the foreclosure sale, notwithstanding the provision, the sale may be made by the sheriff, or deputy sheriff, or by the mortgagee at the option of the latter. The sale shall be postponed, if the foreclosing mortgagee, judgment creditor or other foreclosing lienor, or an authorized agent of the foreclosing mortgagee, judgment creditor or other foreclosing lienor, is not present at the sale or has not previously waived in writing the right to appear and bid at the sale.
A foreclosure sale may be postponed from time to time by inserting a notice of the postponement as soon as practicable in the newspaper in which the original advertisement was published and continuing the publication until the time to which the sale shall be postponed, at the expense of the party requesting the postponement, provided that the original advertisement is published at least once a week, over four (4) consecutive weeks, and the notice of postponement is published at least once a week, over two (2) consecutive weeks.
34-4-110. Successor to officer making sale may execute conveyance.
If the term of service of the officer who makes sale of any lands and tenements as provided in chapter 243 of the Wyoming Compiled Statutes of 1910 expires, or if such officer die, be absent or unable for any cause to make a deed of conveyance of the property sold, any successor of such officer may execute such conveyance.
The costs and expenses of the foreclosure sale, which shall be paid out of the proceeds of the sale, shall include the costs of advertising, the fee of the officer or person making the sale and executing the deed, said fee not to exceed ten dollars ($10.00); and an attorney or solicitor's fee if there be a stipulation therefor in the mortgage.
Whenever an attorney's fee is provided for in any real or chattel mortgage, or the note or notes secured thereby, such attorney's fee shall not be allowed or added to the mortgage debt in any foreclosure by public advertisement and sale, unless it shall appear by the affidavit of an attorney admitted generally to practice in this state representing the mortgagee or his assigns in such foreclosures, or the party instituting such foreclosure, which affidavit shall be filed with the sheriff or person who shall conduct the sale under such foreclosure, and said affidavit shall state therein that there has been and is no agreement, express or implied, between such attorney and his client, nor between him and any other person except a practicing attorney of this state engaged with him as an attorney in the foreclosure proceeding, for any sharing or division of said fee so to be allowed or added to the debt involved, and said fee when so allowed or added to the debt shall be only as compensation for services actually rendered in the foreclosure proceeding by an attorney admitted to practice in this state and residing therein. Provided, however, that in the foreclosure of real estate mortgages, this section shall in no wise affect the title to the real estate involved in such a foreclosure.
(a) After any sale of real estate made as herein prescribed, proceeds from the sale shall be paid over by the officer or other person making the sale in the following order:
(i) Payment of the reasonable expenses of collection and enforcement and, to the extent provided by law, reasonable attorney's fees and legal expenses incurred by the foreclosing mortgagee;
(ii) The satisfaction of obligations secured by the mortgage being foreclosed;
(iii) The satisfaction of obligations secured by any subordinate or junior mortgage or other lien on the real estate sold at the foreclosure sale; and
(iv) Surplus proceeds on demand to the mortgagor, his legal representatives or assigns, and if no demand is made, then the foreclosing mortgagee, officer or other person making sale may retain the surplus proceeds for disposition to the mortgagor or may dispose of the surplus proceeds in accordance with W.S. 34-24-101 et seq.
(b) If the foreclosing mortgagee receives a demand for the proceeds accompanied by the materials required by W.S. 1-18-104(c) and signed by the holder of a subordinate or junior mortgage or other lien within thirty (30) days after the results of the sale are served in accordance with W.S. 34-4-104, proceeds remaining after distribution under paragraphs (a)(i) and (ii) of this section shall be paid over by the officer or other person making the sale as agreed upon by all parties in interest, or by court order, to the subordinate mortgagees or lienholders in accordance with their priority and to the extent of their interest.
(c) Subject to the other provisions of this section, a mortgagee shall account to and pay a mortgagor for any surplus, and the mortgagor is liable for any deficiency.
All deeds and conveyances of real estate given and recorded in the state of Wyoming prior to January 1, 1925, the execution of which shall have been acknowledged before a notarial officer out of this state, where the certificate of official character attached to such deeds or other conveyance fails to state that such deed or conveyance was executed and acknowledged according to the laws of the state or territory in which the same was executed, shall be deemed as valid and binding as if such certificate had contained the statement aforesaid, and shall be so construed by the courts, and the record thereof shall have the same force and effect as if such certificate had contained said statement; provided, that such record shall in no wise affect the right or title of any person acquired in good faith and for a valuable consideration before the said January 1, 1925; and provided, further, that this section shall not be construed to affect any judgment or decree rendered by any court of the state before that time.
All deeds, mortgages or other instruments executed five (5) years prior to January 1, 1935, not witnessed, and admitted to record, which, under the laws of the state of Wyoming should have been executed in the presence of one (1) witness, shall be deemed as valid and binding as if the same had been executed in the presence of a witness, and shall be so construed by the courts of this state, and the records thereof shall have the same force and effect as if such deeds, mortgages, and other instruments had been executed in the presence of a witness; provided, that such record shall in no wise affect the right or title of any person acquired in good faith and for a valuable consideration five (5) years before the said 1st day of January, 1935; and provided, further, that this section shall not be construed to affect any judgment or decree rendered by any court of the state of Wyoming before that time.
34-5-103. Certificate of acknowledgment; failure to state
acknowledgment was according to law; liability of county clerk. All deeds, mortgages, powers of attorney and other instruments executed and acknowledged in any other state, territory or district of the United States five (5) years prior to January 1, 1935, affecting property or property rights in this state, but where the person taking the acknowledgment has omitted to state in his certificate of acknowledgment that such deed, mortgage, power of attorney or other instrument was executed and acknowledged according to the law of such state, territory or district, and when the laws of this state in relation to such certificate have in all other respects been complied with, shall be deemed valid and shall be so construed by the courts of this state, and such instruments shall be entitled to record and the record thereof shall have the same force and effect as if such deeds, mortgages, powers of attorney or other instruments had been acknowledged in the manner provided by the laws of this state, and in case any county clerk shall have received for record such defective instruments, he shall not be liable in an action for damages for having received for record and recorded any such deed, mortgage, power of attorney or other instrument.
34-5-104. Certificate of acknowledgment; incomplete.
Any conveyance of real estate made ten (10) years or more prior to January 1st, A.D. 1935, purporting to be acknowledged before any justice of the peace, within or without the state of Wyoming, where such justice of the peace did not state in his certificate of acknowledgment the date of expiration of his office, or where no certificate, or a defective certificate is attached to such deed by the county clerk or clerk of court of the county of such justice of the peace as is required by law in case such acknowledgment is taken before a justice of the peace outside of the state of Wyoming; and any conveyance of real estate made ten (10) years or more prior to January 1st, A.D. 1935, purporting to be acknowledged before any notarial officer, where such notarial officer did not attach his seal to such certificate of acknowledgment, or did not state therein the expiration of the time of his commission; and any conveyance of real estate made ten (10) years or more prior to the 1st day of January, A.D. 1935, where such conveyance does not purport to be properly witnessed; and any conveyance of real estate made ten (10) years or more, prior to the first day of January, A.D. 1935, purporting to be executed by any corporation, where there is any defect or irregularity in the execution or acknowledgment thereof, shall, if the same has been heretofore recorded ten (10) years or more prior to January 1st, 1935, in the office of the county clerk of the county where the real estate therein conveyed is situate, be deemed as valid and as effective and binding as though the defects and irregularities therein, herein mentioned, did not exist and as though in these respects the same had been executed in full accordance with the laws of this state, and the record, or the certified copy thereof, shall be admitted in evidence in all actions or proceedings with the same force and effect as though the defects and irregularities therein, herein mentioned, did not exist, and as though in these respects the same had been executed in full accordance with the laws of this state.
34-5-105. Defects in mortgage releases and assignments; time limits for civil action.
Any and all mortgage releases and assignments of mortgages which have been heretofore recorded in the office of the county clerk of the county wherein the real estate therein is affected is situate, and have been of record five (5) years or more prior to January 1, 1935, purporting to cancel and discharge or assign any mortgage, and purporting to be executed by any mortgagee his agent or attorney, or by any assignee of said mortgage, or purporting to be executed by any person acting for a corporation which is either mortgagee or assignee of said mortgage, shall be deemed to be valid, and the lien of such mortgage, shall be deemed to be canceled in case of release, and the mortgage deemed duly assigned, in case of assignment, notwithstanding any defects in the execution of such release or assignment. Provided, however, that the holder of any mortgage or the assignee thereof, which said mortgage is defectively released, or assigned as hereinbefore specified, and which has remained unchallenged, by the proper action in court, or other legal and proper proceeding, on the records aforesaid for the period of five (5) years or more as aforesaid, shall have until the first day of January, 1936, in which to commence an action in a court of competent jurisdiction in this state, for the assertion and enforcement of his rights, or to set aside such release or assignment, and if not so commenced as herein mentioned, then such release or assignment shall be deemed valid against such persons and all rights as against the same shall be barred.
In all cases where a conveyance of real estate situate in this state has been made by an executor, administrator or administrator de bonis non, of any deceased person, whether appointed and acting in this or any other state, and the fact of the sale or the conveyance of such real estate has been reported to the court in which such executor, administrator or administrator de bonis non was appointed and acting, and the proceeds of such sale or conveyance, or any part thereof have been distributed, it shall be prima facie evidence that the person or persons so receiving said proceeds or any part thereof, either directly or through any agent or assignee, consented to such sale and conveyance, and intended thereby and did thereby, vest in the purchaser under such sale, and the grantee in such conveyance all the right, title and interest which said person or persons, so receiving said proceeds or any part thereof, had in and to the premises so sold and conveyed at the time of such receipt, and did by so receiving such proceeds or any part thereof, intend to be estopped from claiming any further right, title or interest in and to such real estate.
34-5-107. When executed by executor; deceased entryman.
Any conveyance of land situate within this state, for which no final proof had been made by a deceased entryman or for which no patent had been issued to such deceased entryman under the land laws of the United States during the life of such entryman, which said conveyance has heretofore been made by an executor, administrator or administrator de bonis non of such deceased, appointed and acting by the authority of an order of court of this or any other state, and any conveyance of any land situate in this state heretofore made by any such executor, administrator or administrator de bonis non of a deceased person, whether made under the provisions of any will, foreign or domestic, or any order of court, foreign or domestic, shall be valid and binding, inter alia, upon any heir or devisee and upon any successor in interest of such heir or devisee by whatever manner, in the following cases: First, when such conveyance has with knowledge or means of knowledge of such conveyance, been treated as valid by any such heir or devisee, and the successor in interest thereof, or by such successor in interest, for the period of five (5) years after such conveyance has been ordered or approved by any such court or judge thereof; secondly, when such conveyance has not been sought to be set aside in any court of competent jurisdiction within five (5) years from and after the filing of such conveyance in the office of the county clerk of the county wherein such land is situate.
Any conveyance of real estate heretofore, ten (10) years or more prior to January 1st, A.D. 1935, recorded in the county where such real estate is situate, executed by any foreign administrator, executor or administrator de bonis non, appointed and acting under an order of any court of any state of competent jurisdiction over estates of decedents in such state, when such order was made by the court wherein such executor, administrator or administrator de bonis non was appointed or the judge thereof, and when such conveyance was made in conformity to the laws of the state in which such administrator or executor was appointed, and any conveyance heretofore, ten (10) years or more prior to January 1st, A.D. 1935, recorded in the county where such real estate is situate, executed by any such executor, administrator or administrator de bonis non, under the provisions of any will duly probated in any court of competent jurisdiction wherever situate, when such conveyance was made in conformity to the law of the state in which such administrator or executor or administrator de bonis non was appointed, shall be as valid and binding upon the heir and devisees of the decedent and their successors in interest, as though such conveyance were made in conformity with the laws of this state; provided, such conveyances herein mentioned were made in accordance with due process of law in such state.
34-5-109. Copies of proceedings in foreign courts.
Duly certified copies, according to law, of the proceedings in foreign courts, mentioned and referred to in W.S. 34-5-107, 34-5-108 and 34-5-110, when recorded in the office of the county clerk of the county where the land involved is situate, such records, or the certified copies thereof, shall be competent and prima facie evidence of the truth of the contents thereof, and the regularity of the proceedings therein set forth.
34-5-110. Adverse claims; when adverse claimant barred against purchaser.
Any claimant having acquired any vested right in and to the said real estate conveyed as aforesaid in the two (2) preceding sections, adverse to the purchaser under the conveyances executed as aforesaid in the two (2) preceding sections, which said adverse claim was acquired five (5) years prior to January 1, 1935, shall have until the first day of January, 1936, in which to commence an action in a court of competent jurisdiction within this state, to assert and enforce such adverse right, and such vested right shall during the period herein allowed for the commencement of such action, not be affected by the provisions of the two (2) preceding sections, but from and after the time so allowed for the commencement of such action, unless such action has been brought as herein mentioned, all rights of such adverse claimant in and to such real estate shall be forever barred.
34-5-111. Adverse claims; action by heir against purchaser.
In any action contemplated in the preceding section, commenced and brought by an heir or devisee of such deceased person in this action contemplated, or the successor in interest of such heir or devisee, if it shall appear that such heir or devisee had knowledge, either by personal notice, or constructively under the laws of the state where the estate of such deceased person was administered, of the fact of the sale or the conveyance of such real estate mentioned in the two (2) preceding sections, or where such person appeared in the proceedings in court relating thereto, it shall be prima facie evidence against such devisee and heir, and against any successor in interest of such heir or devisee without adequate consideration, that such heir and devisee consented to such sale and conveyance, and intended thereby, and did thereby, vest in the purchaser under such conveyance, or sale, all the right, title and interest which such devisee and heir had in and to such real estate so sold or conveyed at the time of such sale or conveyance, and meant to be estopped thereby to claim any future title or interest therein, and if such action is brought by the successor in interest of such heir or devisee, it shall be presumed in the first instance, that such successor in interest is such without adequate consideration, and provided further, that in all such actions, all such conveyances shall be prima facie of the effect as vesting the complete and clear title of the property conveyed in such conveyance in the grantee therein.
litigation; enforcement of rights of minor heir in conveyed property. The provisions of W.S. 34-5-104 through 34-5-108, 34-5-110, 34-5-111, inclusive, shall not affect any pending litigation. And any right which any minor heir may have in and to any property conveyed, transferred or released as in said sections mentioned, may be asserted by bringing an action in any court of competent jurisdiction within one (1) year after such minor heir becomes an adult.
34-5-113. Where release of homestead or marital status of grantor not indicated.
All conveyances by which any estate or interest in real estate is created, alienated, mortgaged or assigned, or by which the title to any real estate may be affected in law or in equity wherein there is no release or waiver of homestead or the marital status of the grantor is not set forth, and which have been or hereafter may be recorded for a period of ten (10) years in the office of the county clerk of the county wherein such real estate is situated, it shall be conclusively presumed that said real estate was not used, occupied or claimed by the grantor, or the spouse of the grantor as a homestead at the time of said conveyance.
34-5-114. Gifts to religious and educational uses; generally.
No gift, devise, bequest, transfer, grant or conveyance of real or personal property to religious, educational, charitable or benevolent uses, which shall in other respects be valid under the laws of this state shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating or constituting the same.
34-5-115. Gifts to religious and educational uses; existence of prior trust agreements in will.
No such gift, bequest or devise contained in any will executed in accordance with the requirements of law shall be deemed invalid by reason of the incorporation by reference in the will of any written or printed resolution, declaration or trust agreement, identified as existing prior to the execution of such will, and adopted or made by any corporation or corporations authorized by law to accept and execute trusts, creating a trust to assist, encourage and promote the well being or well doing of mankind, or of the inhabitants of any community, provided that a copy of such resolution, declaration or deed of trust, certified by the secretary or assistant secretary, or other officer or officers, of such corporation or corporations under its or their corporate seal or seals, shall have been filed for record in the office of the secretary of state of the state of Wyoming, the secretary of state being hereby authorized and directed to receive and record such resolution, declaration or deed of trust, upon payment of the fees provided by law.
34-5-116. Gifts to religious and educational uses; valid notwithstanding terms are included only by reference.
(a) Any gift, devise or bequest so made to any such corporation in trust for the uses and purposes contained in such resolution, declaration, or deed of trust, shall be valid and effectual, notwithstanding:
(i) That the terms, conditions, uses and purposes of such gift, devise or bequest, are included only by such reference in the will; and, or
(ii) That such resolution, declaration, or deed of trust, has been or may be, amended in accordance with the provisions thereof.
34-5-117. Gifts to religious and educational uses; application of W.S. 34-5-114 through 34-5-117.
All the terms and provisions of this act shall be deemed applicable to all gifts, devises, bequests, transfers, grants or conveyances of real or personal property heretofore made, as well as to those hereafter made, and to all such resolutions, declarations, or deeds of trust as are hereinabove referred to which have been heretofore filed for record as hereinabove provided, as well as those which shall be hereafter so filed for record.