71-1-304. Trust indentures authorized -- power of sale for breach in trustee. (1) A transfer in trust of an interest in real property of an area not exceeding 40 acres may be made to secure the performance of an obligation of a grantor or any other person named in the indenture to a beneficiary. However, a trust indenture may not be substituted for a mortgage that was in existence on March 5, 1963.
     (2) When a transfer in trust of an interest in real property is made to secure the performance of the obligation referred to in subsection (1), a power of sale is conferred upon the trustee to be exercised after a breach of the obligation for which the transfer is security.
     (3) A trust indenture executed in conformity with this part may be foreclosed by advertisement and sale in the manner provided in this part or, at the option of the beneficiary, by judicial procedure as provided by law for the foreclosure of mortgages on real property. The power of sale may be exercised by the trustee without express provision in the trust indenture.
     (4) If a trust indenture states that the real property involved does not exceed 40 acres, the statement is binding upon all parties and conclusive as to compliance with the provisions of this part relative to the power to make a transfer, trust, and power of sale.

     History: (1) thru (3)En. Sec. 4, Ch. 177, L. 1963; amd. Sec. 3, Ch. 337, L. 1974; Sec. 52-404, R.C.M. 1947; (4)En. Sec. 3, Ch. 177, L. 1963; amd. Sec. 2, Ch. 337, L. 1974; Sec. 52-403, R.C.M. 1947; R.C.M. 1947, 52-403(part), 52-404; amd. Sec. 3, Ch. 114, L. 1989; amd. Sec. 4, Ch. 30, L. 2001.