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Full text of "A treatise on the law of mortgages of real property in the state of New York : with references to the decisions of the federal courts and of the courts of the various states; and an appendix of forms"

Cornell University Law Library 

The Moak Collection 

PURCHASED FOR 

The School of Law of Cornell University 

And Presented February 14, 1893 

IN HEnORY OF 
JUDOE DOUQLASS BOARDMAN 

FIRST DEAN OF THE SCHOOL 

By his Wife and Daughter 
A. M. BOARDMAN and ELLEN D, WILLIAMS 




The original of this book is in 
the Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924022802783 



A TREATISE 



LAW OF MORTGAGES 



REAL PROPERTY 



THE STATE OF NEAAT YORK, 

WITH BEFBEBNCBS TO 

THE DECISIONS OF THE FEDEEAL COURTS, AND OF THE 
COURTS OF THE VARIOUS STATES ; 



AN APPENDIX OF FORMS. 

By ABNER C. THOMAS, 

C0ira8ELL0K-AT-LAW. 



SBCOND EDITION, BEVI8ED AND ENLARGED. 



NEW YORK: 
BAKER, VOORHIS & CO., PUBLISHERS, 

66 NASSAU STREET. 
1887. 




Entered, according to Act of Congress, in the year eighteen hundred and seventy-seven, by 

ABNER C. THOMAS, 

In the office of the Librarian of Congress, at Washington. 



COPTBIQHT, 1887, BY ABNER C. THOMAS. 

nil 



E. O. JENKINS' SONS, PRINTERS, 
NEW YORK. 



PHEFACE TO THE SECOND EDITION. 



The first edition of this work was published in 1877. The 
kind reception which it met with encouraged the author to 
undertake its enlargement and possible improvement, and this 
has been his recreation for a number of years during the hours 
that could be spared from more urgent employment. The 
general plan of the book will be found not to have been 
greatly changed, but the matter has been re-arranged in some 
respects, and revised, and largely added to, and the whole has 
been divided into sections with an appropriate heading to each. 
The years which have elapsed since the publication of the first 
edition have been unusually fruitful of mortgage litigations, 
and it is believed that every reported decision of the courts of 
this State, having any bearing on the rights of parties to mort- 
gages of land, has been cited. In addition to this the reports 
of the decisions of the Courts of the United States and of the 
Appellate Courts of other States and Territories, have been 
examined, and the cases based upon prtaciples accepted here, 
and not resting upon merely local statutes, have been referred 
to. This examination was made without the aid of any digest 
or text-book, from the reports themselves, volume by volume. 

The Forms in the Appendix have been revised or re- writ- 
ten to conform to the requirements of the Code of Civil Pro- 
cedure. 

It was originally proposed to treat mortgages of personal 
property as well as mortgages of real estate, in this edition 
as was done in the first, but as the work progressed it was 
discovered that no reasonable amount of condensation would 
permit this to be done within the limits of a single volume. 



iv PREFACE TO THE EIRST EDITIOIST. 

and for this reason the portions of the first edition concerning 
mortgages of personal property have been omitted, and with 
additions may some day be published as a separate work. 

The author submits the book to his brethren in the pro- 
fession with the hope that it may prove as useful to them as 
its preparation has been agreeable to him. 

ABNER C. THOMAS. 

10 Wall Steeet, New York, z 

July 1, 1887. 



PREFACE TO THE FIRST EDITION. 

The fact that mortgages of land are, in the State of 'New 
York, almost as common as absolute conveyances, is evidence 
of the most convincing character that the law which governs 
the rights and remedies of the parties to them, has been wisely 
framed and is justly administered. The conclusion which may 
be reached from so casual an observation of results will be 
abundantly justified by a study of the law itself ; and it is 
beyond dispute that the law of mortgages of real property in 
this State is admirably adapted to the business needs of our 
people. 

Mortgages of chattels do not afford such satisfactory secu- 
rity to the mortgagees as do mortgages of real estate ; but, as 
an offset to this, they are regarded with favor by failing debt- 
ors who desire to shield their property from the demands of 
their creditors. They are not so common as mortgages of real 
estate, but the questions which arise concerning the rights of 
parties claiming under them, and of those claiming in hostility 
to them, are numerous and important. 

The aim of the author in preparing this work has been to 
present in a convenient form an intelligible statement of the 
law governing the rights and remedies of parties to mortgages 
in this State, and to collate and arrange under appropriate 
divisions all of the decisions of the courts of this State rela- 
tive to the topics treated. Decisions of the English courts, 



PEEFACE TO THE FIRST EDITION. V 

and of the courts of tlie other States of our Union, and of the 
United States, have also been cited for the purpose of illus- 
trating principles which have received approval here. 

The Appendix of Forms was designed to furnish the kind 
of help which a busy lawyer, unfamiliar with the practice in 
litigations which specially concern mortgages, could not get 
from a mere statement of principles. It was, therefore, at- 
tempted to avoid inserting forms which were, on the one hand, 
so common as to be kept for sale by the stationers, or on the 
other, so unusual as to be but seldom needed. 

In thus taking his readers into his confidence as to what he 
has tried to accomplish, the author expressly disclaims any 
pretension to having entirely succeeded in his endeavors. He 
sincerely wishes that the book were more complete and satis- 
factory, and he sends it out into the world in the hope that, 
in spite of its defects, it may serve to lighten, somewhat, the 
labors of an overworked profession. 

ABNER 0. THOMAS. 

Tribune Building, New Yoek, 
January 3, 1877. 



TABLE OF CONTENTS. 



References are to Sections. 



CHAPTEK I. 

SEOTIOKS 

HISTORY OF MOETUAGES AND THEIE NATURE, . 1-30 

CHAPTEE II. 

CONDITIONAL SALES, 31-40 

CHAPTEE III. 

EQUITABLE MORTGAGES AND IMPLIED LIENS FOR PUR- 
CHASE MONEY. 

Equitable mortgages, 41 

Equitable mortgages by deposit of title deeds, . . . 42-51 
The lien of a vendor for unpaid purchase money, . . 52-64 
Priority of equitable mortgages as against subsequent pur- 
chasers and iacumbrancers, 65-70 

Remedy proper for an equitable mortgagee, . . . 71-75 

CHAPTEE IV. 
WHO MAY MORTGAGE AND HOW. 

What may be mortgaged, 76-80 

Mortgages executed under powers, 81-85 

Execution and delivery, 86-91 

The debt secured, 92-108 

Mortgages of partnership real estate, 104^112 

Mortgages from husband to wife, 113 

Mortgages by corporations, 114^181 

Mortgages by national banks, 132-133 

Mortgages of the lands of infants, 134-140 

Insane persons, 141-143 

Mortgages of lands of deceased persons to pay debts, . . 144-145 

Mortgages of burial and cemetery lots, .... 146-148 



Vlll TABLE OP CONTENTS. 

CHAPTER V. 

EXTENT OF THE LIEN, AND REMEDIES ON ACCOrNT OP 

WASTE. 

SECTIONS 

Lien of a mortgage on a right of action for damages to the 

estate, 149-153 

Mortgages on leasehold estates, 154-157 

Mortgages by raUroad companies, 158-159 

Lien upon emblements, ...... 160-165 

What are fixtures as betweeit mortgagor and mortga;gee, . 166-172 

Eule as to fixtures between lessor and lessee, . . . 173-174 

Conflicting claims to chattels affixed to mortgaged realty, . 175-180 

Injunction to restrain waste, ...... 181-187 

Action for damages caused by waste, .... 188-191 

CHAPTEE VI. 

MORTGAGES FOR FUTURE ADVANCES OR OBLIGA- 
TIONS, 192-203 

CHAPTER VII. 
TiaiE FOR THE PAYMENT OF THE MORTGAGE DEBT. 

Extension of time for payment, 204-207 

Extension by renewal of notes, 208-212 

Effect of extension on rights of sureties, .... 213-220 
When a refusal by a creditor to collect a debt discharges the 

surety, 221-227 

Shortening the time of payment under the default clause, . 228-234 

CHAPTER VIII. 

RIGHTS OF MORTGAGEE IN POSSESSION, AND ACCOUNT- 
ING BETWEEN MORTGAGOR AND MORTGAGEE. 

Rights of mortgagee in possession, 285-244 

Accounting between mortgagor and mortgagee, . . . 245-264 

CHAPTER IX. 

THE PRIMARY FUND FOR THE PAYMENT OF MORTGAGES 
AND PRIORITIES INDEPENDENT OF THE RECORDING 
ACTS. 

The primary fund for the payment of mortgages, . . 265-280 

Priorities independent of the recording acts, . . . 281-297 

CHAPTER X. 
ASSIGNMENT OF MORTGAGES, "..... 298-334 



TABLE 0¥ CONTENTS. 



IX 



CHAPTEE XI. 
THE PAYMENT AND DISCHARGE OP MOETGAGES. 

SECTIONS 

What payment will discharge a mortgage, . . . 335-341 

Who may receive payment, 342-359 

Application of payments, 360-362 

Discharge by merger, 363-380 

Discharge by release of part of the security, . . . 381-388 

Changes in the form of the debt, ..... 389-393 

Discharge by extending time for payment of mortgage debt, 394 

Discharge by estoppel, 395 

Discharge by tender of payment, 396-409 

Presumption of payment from lapse of time, . . . 410-416 

Discharge of mortgages upon the record, .... 417-430 

Setting aside and cancelling the discharge of a mortgage, . 431-438 

Reissue of paid mortgage, 439-443 

Subrogation, 4 41 1 56 



CHAPTEE XII. 
THE RECORDING ACTS. 



What instruments may be recorded, 
Acinowledgment or proof, 
Method of recording. 
Effect of the record. 
Who protected by recording acts. 
Notice as affecting recording acts, 
Recording assignments of mortgages. 
Judgment liens suspended upon appeal. 



457-460 
461-464 
465-478 
474-481 
482-486 
487-495 
496-503 
504-505 



CHAPTEE XIII. 

MORTGAGES TO THE COMMISSIONERS OE THE UNITED 
STATES DEPOSIT FUND. 

Origin of the fund, 506-508 

Effect of these mortgages as record notice, .... 509-512 
Provisions of law specially applicable to mortgages to the loan 

commissioners, 513-518 

Rights of mortgagors under mortgages to the loan commis- 
sioners, 519-521 

Sale of the mortgaged premises under the statute, . . 522-528 



X TABLE OP CONTENTS. 

CHAPTER XIV. 

INSUBAJJCE AGAINST FIEE. sections 

Insurable interests of parties to mortgages, .... 529-532 

Form of contract of insurance 533-543 

" Mortgagee clause " in policy, 544^545 

Agreement to insure contained in the mortgage, . . . 546-549 

Enforcing payment by insurers, 550-553 

Eights of the parties where the premium is paid by the 

mortgagor, 554r-557 

Eights of the parties where the premium is paid by the 

mortgagee, 558-561 

When the insurer is entitled to be subrogated to the rights 

of the mortgagee, 562-564 

CHAPTER XV. 
THE ASSUMING OP MOETGAGES. 

Agreement to assume mortgage, 565-578 

Grounds upon which the mortgagee may enforce the agree- 
ment to assume, 579-587 

Effect of the agreement where the grantor is not obligated 

to pay the debt, 588-590 

Eelations between parties after agreement to assume, . . 591-594 
Defenses to actions on covenants to assume mortgages, . 595-604 

CHAPTER XVI. 

MAEEIED WOMEN. 

Power of married women to mortgage their lands, . . 605-610 

Liability of married women for deficiency upon foreclosure, . 611-619 

Eight of dower in the equity of redemption, . . . 620-627 

CHAPTER XVII. 
INTEEEST AND TJSUEY. 

Interest, . 628-631 

Usury 632-672 

CHAPTER XVIII. 
EEDEMPTION, 673-698 

CHAPTER XIX. 
ACTIONS TO EEDEEM, 699-717 



TABLE OF CONTENTS. XI 



CHAPTEE XX. 



PAETIES TO ACTIONS FOR THE FOEECLOSURE OF MORT- 
GAGES. 

SBOTIONS 

Who are proper plaintifEs in foreclosure cases, . . . 718-728 

Who are necessary defendants in foreclosure cases, . . 729-740 

Who are proper defendants in foreclosure cases, . . . 741-742 
When the assignor of the mortgage is a necessary or proper 

party to an action to foreclose it, 743-746 

Enforcing personal obligation for debt in foreclosure suit, . 747-750 

Unnecessary parties, 751-754 

CHAPTER XXI. 

NOTICE OF THE PENDENCY OF THE ACTION TO 

FORECLOSE, 755-774 

CHAPTEE XXII. 
PRACTICE EST ACTIONS TO FORECLOSE MORTGAGES. 

Proceedings prior to judgment, 775-826 

Judgment for deficiency, . . .... 827-833 

Force and effect of judgment, 834^837 

Stay of proceedings on appeal, 838-840 

CHAPTER XXIII. 

DEFENSES AND COUNTERr-CLAlMS IN ACTIONS TO FORE- 
CLOSE. 

841-851 
852-853 
854-855 
856-857 
858-869 
870-877 



What may be litigated in actions to foreclose. 
How a defect of parties may be objected to, 
Proceedings at law for the -same debt, .... 

Infancy as a defense, 

Failure of consideration for a purchase-money mortgage. 
Counter-claims in foreclosure cases, .... 
When a grantee may defend who has taken subject to the 

mortgage, 

Defense of defect of title to the mortgage. 



878-882 
883-884 



CHAPTEE XXIV. 
RECEIVERS OF RENTS. 

When a receiver will be appointed, 885-901 

Powers and duties of the receiver, 902-907 



Xll TABLE OF CONTENTS. 

CHAPTER XXV. 
COSTS. 

SECTIONS 

Costs in actions to foreclose, ....... 908-918 

Costs in surplus proceedings, 919 

Costs in actions to redeem, 920 

CHAPTER XXYI. 

HOW THE SALE TJNDEE THE JUDGMENT OP FOEE- 

CLOSUEE SHOULD BE MADE, .... 921-942 

CHAPTER XXVII. 

WHEN THE SALE SHOULD BE MADE IN SEPAEATE PAE- 
CELS, AND OEDEE OP THE SALE OF SUCH PAECELS. 

Sale in separate parcels, 943-956 

Order of sale, 957-965 

CHAPTER XXVIII. 

SETTING ASIDE THE SALE IN FOEECLOSUEE, AND 

OEDEEING A EESALE, 966-987 

CHAPTER XXIX. 

EIGHTS AND OBLIGATIONS OF THE PUECHASEE AT THE 
SALE UNDEE THE JUDGMENT OP FOEECLOSUEE- 

Who may purchase, 988-993 

Contract of the purchaser and enforciag its performance, . 994^996 
What kind of a title the purchaser must take, . . . 997-1007 
When a purchaser will be excused, .... 1008-1012 

CHAPTER XXX. 

ESTATE OF THE PUECHASEE AT THE SALE UTSTDEE THE 
JUDGMENT, AND HOW POSSESSION MAY BE OBTAINED. 

Title of purchaser, 1013-1023 

Contracts made by mortgagor before foreclosure, . . 1024^1026 

Purchaser's title after defective foreclosure, . . . 1027-1080 

Obtaining possession, 1031-1038 



TABLE OF CONTENTS. XIU 

CHAPTEE XXXI. 
SURPLUS PROCEEDINGS. 



SECTIONS 

1039-1043 
1044-1052 
1053-1061 
1062-1064 
1065-1074 



Provisions of law relating to distribution of surplus, 

What may be litigated, 

Who is entitled to surplus, 

Are surplus moneys real or personal property, . 
Practice in proceeding to distribute surplus, 

CHAPTEE XXXII. 

REMEDIES OF THE MORTGAGEE, OTHER THAN BY PRO- 
CURING A SALE OF THE MORTGAGED ESTATE. 

Strict foreclosure, 1075-1083 

Action at law on debt, 1084-1089 

Leave of court to sue after foreclosure, .... 1090-1096 

Ejectment, 1097-1098 

CHAPTEE XXXIII. 
FORECLOSURE BY ADVERTISEMENT. 

General policy of the statutes, 1099-1102 

Practice before sale, 1103-1114 

Notice of sale, 1115-1122 

Sale, 1123-1129 

Restraining the sale by injunction, 1130-1134 

Setting aside sale, 1135-1138 

Title of the purchaser, 1139-1143 

Evidence of the foreclosure, 1144-1151 

Costs, ... 1152-1153 

Distribution of surplus, . 1154-1157 

Obtaining possession, . . ^ .... 1158-1159 

PAGES 

APPENDIX OF FORMS, . . 747-796 

INDEX TO FORMS, 797 

GENERAL INDEX, . . .... 801 



WDEX TO CASES CITED. 



References are to Sections. 



Abbe V. Goodwin, 673. 
Abbott V. Allen, 600, 859, 863, 865, 
869, 873. 

V. Banfield, 11 18. 

V. Curran, 728, 739, 926. 

V. Upton, 340. 
Abell V. Coons, 592. 
Abernethy v. Society of the Church of 

. the Puritans, 128. 
Abrahams v. Claussen, 671. 
Abrogast v. Hays, 410. 
Acer V. Hotchkiss, 444, 445. 
V. Merch. Ins. Co., 541. 
Ackene v. Winston, 628. 
Ackerman v. Hunsicker, 192, 201, 202, 

466. 
Ackley v. Parmenter, 938. 
Adair v. Adair, 298. 
Adams v. Adams, 19. 

V. Beadle, 160, 164. 

V. Brown, 259. 

V. Essex, 818. 

V. Greenwich Ins. Co., 541. 

V. Niemann, 100. 

V. Sayre, 708, 990. 
Addison v. Gandassequi, 570. 
Adger v. Pringle, 294. 
Adkins v. Lewis, 253. 
^tna Ins. Co. v. Tyler, 64, 559, 562. 
yEtna Life Ins. Co. v. Baker, 414. 
Agate V. King, 871, 874. 
Agawam Bank v. Strever, 99. 
Agricultural Ins. Co. v. Barnard, 143. 
Ahem v. Goodspeed, 324, 331. 

■V. White, 286. 
Ahrend v. Odiorne, 43. 
Aiken v. Morris, 869. 
Ainsley v. Mead, 618. 
Ainslie v. Wilson, 374. 
Albany City Bank v. Schermerhom, 

904. 
Albany City Savings Institution v. 
Burdick, 598, 850. 



Albany, etc., Co. v. Crawford, 19. 
Albany Fire Ins. Co. v. Bay, 606, 607. 
Albert v. Grosvenor Investment Co., 

204. 
Alderson v. Ames, 286. 
Aldrich v. Lapham, 792. 

V. Reynolds, 160, 162, 645, 

1 132. 
V. Stevens, 765. 
V. Willis, 456. 
Alexander v. Rea, 850. 

V. Walker, 929. 
Algur V. Gardner, 642. 
AUard v. Lane, 419. 
Allen V. Brown, 1 54. 
V. Cadwell, 492. 
V. Clark, 683. 
V. Dermott, 1084. 
V. Elderkin, 1021. 
V. Everly, 414. 
V. Franklin Ins. Co., 529. 
V. Fogg, 19. 
V. Jaquish, 204. 
V. Loring, 70. 
V. Moone)', 171. 
V. Poole, 134. 
V. Shackelton, 865. 
V. Vermont Mut. Fire Ins. Co., 

543- 
V. Woodruff, 45. 
AUerton v. Belden, 665, 666, 667, 708. 

V. Lange, 302. 
Allison V. Armstrong, 29. 
V. McCune, 188. 
V. Schmetz, 645. 
Althouse V. Radde, 998. 
Alvis V. Morrison, 467. 
American Ins. Co. v. Oakley, 280, 784, 
952, 966, 969, 976, 985, 996, ion. 
American Trust Co. v. North Belle- 
ville Quarry Co., 191. 
Amerman v. Wile, 121. 
Ames V. Richardson, 546. 



XVI 



INDEX TO CASES CITED. 



Bef&reTices are 
to Sections. 



Anderson v. Austin, 956,«iii2, 1127. 
w. Foulke, 995- 
V. Hubble, 436. 
V. Lauterman, 245, 252. 
V. Neff, 292. 
V. Tannehill, 60. 
Andrews v. Gillespie, 743, 746, 850. 
•v. Hubbard, 271, 680, 683. 
V. Monilaws, 618. 
V. Myers, 912. 
V. Schaffer, 607. 
V. Steele, 742. 
Andrus v. Vreeland, 364. 
Angel V. Boner, 364. 
Anketel v. Converse, 60. 
Anonymous, 801, 811. 
Anson v. Anson, 29. 
Archambue v. Green, 419. 
Argall V. Pitts, 885, 896. 
Armstrong v. Freeman, 637. 
V. Gilchrist, 847. 
V. McAlpin, 448. 
v. Murdock, 918. 
V. Short, 850. 
Arnold v. Crowder, 172. 
V. Curl, 858. 
■V. Patrick, 58, 66, 67. 
V. Rees, 777. 
V. Stebenson, 105. 
Arnot v. E. R.R. Co., 565. 

V. McClure, 1148, 1149, ii5i. 
V. Post, 398. 
Artcher v. Douglass, 872. 
V. McDuffie, 99. 
Arthur v. Com'l and R.R. Bank, 114. 
Asay 7/. Hoover, 23, 
Asendorf w. Meyer, 231, 233, 818. 
Ashford v. Watkins, 608, 
Aspinwall z>. Balch, 531, 532. 
Astor V. Hoyt, 23, 26, 149, 155. 
■V. Miller, 23, 155. 
V. Palache, 915. 
■v. Romayne, 939. 
V. Turner, 885, 895, 896, 904, 

1020. 
V. Westchester Gaslight Co., 122, 
124. 
Atcheson v. Mallon, 993. 
Atherton v. Torrey, 338. 
Atkins V. Lewis, 22. 
Atkinson v. Duify, 1109. 
■V. Hewett, 188. 
Atlantic Dock Co. v. Leavitt, 567, 575.. 
Atlantic Ins. Co. v. Storrow, 444, 562. 
Atlantic Savings Bank v. Hetterick, 

1048. 
Atlantic Sav. Bk. v. Hiler, 1048, 1052. 



Atwood V. Bears, 492. 
V. Small, 738. 
Auble, Adm'r of, v. Trimmer, 633. 
Augier v. Schieffelin, 464. 
Aultman v. Jenkins, 261. 

7/. McGregor, 293. 
Austin V. Chittenden, 878. 
V. Hall, 347. 
zi. Shaw, 2^9. 
V. Sprague M'f'g Co., 17. 
V. Trustees, etc., 782. 
Averill v. Guthrie, 292. 

V. Loucks, 109, 1053. 
V. Taylor, 352; 675, 676, 685, 
703, 722, 728, 1105. 
Ayers v. Dixon, 577. 
V. Hays, 344. 
V. Probasco, 87. 
V. Rivers, 293. 
Aymar v. Bill, 26, 302. 
Ayres v. Adams, 452. 

V. Wattson, 212, 214. 

Babcock tj. Bridge, 203. 
V. Morse, 208. 
V. Utter, 166. 
Bache v. Doscher, 937, 1053. 

V. Purcell, 789, 911. 
Bacon v. Brown, 193. 

V. Cottrell, 682. 

zi. Goodnow, 448. 

v. Van Schoonhoven, 344, 418, 
419, 458, 500. 
Badger v. Phinney, 856. 
Bailey v. Adams, 206. 

V. Alleghany Nat. Bank, 79. 

V. Bailey, 18, 674. 

z/. Crim, 478. 

■V. Richardson, 371. 

V. Timberlake, 477. 
Baily v. Smith, 308. 
Bainbridge v. Richmond, 99. 
Baird z/. Jackson, 167, 279. 
Baker v. Clark, 262. 

V. Lorillard, 139. 

V. Mather, 494. 

V. Pierson, 1027. 

V. Terrell, 446, 577. 

V. Thrasher, 36, 40. 

V. Union Mut. Ins. Co., 327. 

V. Whiting, 29. 
Bakes v. Gilbert, 60. 
Baldwin v. Crary, 350. 
Ballin v. Dillaye, 566, 612. 
Baldwin v. Moffitt, 450. 

V. Norton, 341, 414. 
Ballou V. Taylor, 414. 



Referenax are 
to Sections. 



INDEX TO CASES CITED. 



XVll 



Bangs V. Duckenfield, 143. 
V. Mosher, 218. 
V. Strong, 213, 217. 
Bank v. Anderson, 436, 437. 
V. Arnold, 161. 
V. Bacharach, 792. 
V. Bryan, 308. 
V. Butterfield, 282. 
V. Eldridge, 342. 
V. Morsell, 192. 
V. Sav. Inst'n, 472. 
V. Sawyer, 492, 
V. Thayer, 381. 
V. Wentworth, 850. 
Bank for Savings v. Frank, 281, 297, 

314, 384, 459. 493- 
Bank of Albion v. Burns, 212, 215, 220, 
275. 394. 610. 
Auburn v. Roberts, 149. 
Commerce, Appeal of, 200. 
England v. Tarleton, 294. 
Lansingburgh v. Crary, 175. 
Montgomery County's Appeal, 

200, 201. 
Munroe v. Culver, 332. 
Ogdensburgh v. Arnold, 885, 

890, 945. 
Orleans ^'. Flagg,845,846,io54. 
Plattsburgh v. Piatt, 897. 
Rochester v. Emerson, 832. 
Rome V. Mott, 189. 
Royalton v. Gushing, 109. 
U. S. V. Davis, 384, 493. 

V. Winston, 444. 
Utica V. Finch, 93, 94, 192, 
193, 195, 197, 203, 208, 212, 
292, 389, 439, 897. 
Utica ■z/. Wager, 633. 
Banks v. Van Antwerp, 664. 

V. Walker, 751, 843, 859, 863, 
1018. 
Banta v. Brown, 982. 
V. Garmo. 449. 
V. Maxwell, 979. 
Barber ■z'. Cary, 1127. 
V. Graves, 782. 
Barclay v. Blodgett, 300. 
Bard v. Poole, 743. 

V. Steele, 804, 964. 
Baring v. Moore, 933. 
Barker v. Bradley, 565. 
V. Bucklin, 565. 
V. Burton, 751, 776, 834, 843, 

912. 
V. Flood, 337, 367. 
V. International Bank of Chi- 
cago, 879. 



Barlow v. Myers, 342. 
Barnaby v. Parker, 850. 
Barnard i). Bruce, 835, 910. 
V. Jennison, 248. 
V. Moore, 200. 
V. Onderdonk, 410, 837. 
Barnes v. Brown, 678. 

V. Camack, 423, 424, 431. 

V. Decker, 753. 

V. Mayor, etc., of New York, 

152. 
V. Mott, 378, 433, 444, 448, 958. 
V. Stoughton, 948, 974. 
V. Wintringham, 340. 
Bamett v. Nelson, 248. 

V. Zacharias, 324, 649. 
Barney v. Myers, 386. 
Bamum v. Hempstead, 84. 
Barrett v. Carter, 16. 
V. Lewis, 52. 
V. Prentiss, 413. 
Barron v. Newberry, 732. 

V. Paulling, 251. 
Barry v, Hamburg-Bremen Ins. Co. 540. 
V. Merchants' Exch. Co., 1 14, 192. 
V. Ransom, 872. 
Barthet v. Elias, 652, 874. 
Bartlett v. McNeill, 1095. 
Barton v. May, 708, 717, 920. 
Bartow v. Cleveland, 690, 908, 914. 
Bascom v. Smith, 364. 
Baskins v. Calhoun, 878. 
Bassett v. Brady, 576, 602. 

V. Daniels, 308. 
Bates V. Delaven, 859. 
zi. Norcross, 478. 
V. The People's, etc.. Associa- 
tion, 261. 
V. Reynolds, 779. 
V. Rosekrans, 667, 874. 
Bathgate v. Haskins, 870, 871, 872, 915. 
Battell V. Torrey, 1 39. 
Bauer v. Pierson, 493. 
Baughman v. Gould, 865. 
Baum V. Grigsby, 69. 
Bay V. Williams, 602. 
Bayles v. Glenn, 308. 

V. Husted, 686, 690. 
Bayley v. Greenleaf, 66, 70, 288. 
Baxter v. Smack, 1089. 
Beach v. Cooke, 423, 424, 699, 709, 710, 
716, 1083, 1098. 
V. Ruggles, 788. 
Beale v. Ryan, 1 5. 
Beals V. Neddo, 308. 
Bean v. Brown, 360. 
Bearce v. Barston, 637. 



xvm 



INDEX TO CASES CITED. 



Iteferencea are 
to Sections, 



Beard v. Smith, 1062. 

Beardsley v. Ontario Bank, 158. 

Bearss v. Ford, 30, 33. 

Beatty v. Brummett, 13, 24.. 

Bebee v. The Bank of New York, 312. 

Beck v. Tarrant, 53, 59; 

Beckenbaugh v. Nally, 999. 

Becker v. Howard, 691, 765. 

Beckham v. Drake, 570. 

Beckman v. Sikes, 160. 

Bedell v. Carll, 302. 

V. McClell'an, 1131. 
Bedford v. Backhouse, 478. 

V. Tupper, 470. 
Beecher v. Ackerman, 423, 424, 652, 
666, 667, 708. 
V. Marquette & Pacific Roll- 
ing Mill, 122. 
V. Stevens, 105. 
Beekman Fire Ins. Co. v. First Metho- 
dist Episcopal Church, 
1060. 
V. Gibbs, 948, 1044. 
Belden v. Meeker, 342, 497, 498. 

V. Slade, 692, 717. 
Belding v. Manly, 293, 301. 
Belknap v. Sealey, 865. 
Bell V. Birdsall, 1035. 
V. Day, 641. ■ 
V. Fleming, 200. 
V. Fleming, Exr., 193. 
V. Lent, 645, 646. 
V. Mayor of New York, 246, 256, 

624, 682. 
V. Radcliff, 196. 
V. Tate, 843. 
V. Tenny, 365. 
Bellamy v. Brickenden, 264. 
Bellas V. McCarty, 458. 
Belmont V. Coman, 575, 596. 

V. O'Brien, 1004. 
Belloe V. Rogers, 750. 
Bement v. Plattsburgh & Montreal R.R. 

Co., 158. 
Bendy v. Townsend, 337. 
Benedict v. Oilman, 238, 255, 304, 682, 
692, 698, 711, 717, 910, 
920, 1030, 1027, 1077, 
1082, 1142, 1 143. 
V. Hunt, 865. 
Benham v.. Rowe, 259. 
Benjamin v, Elmira, Jefferson & Can- 

andaigua R.R. Co., 834. 
Bennett v. Austin, 990. 

V. Bates, 878, 881. 
V. Cook, 630. 
V. Holt/ 38. 



Bennett v. Keehn, 879. 
V. Nichols, 433. 
V. Stephenson, 231. 
V. Wolverton, 17. 
Bennock v. Whipple, 16. 
Benson v. Sayre, 760. 

V. Stewart, 459. 
Bentley v. O'Brien, 19. 

V. Vanderheyden, 341, 592. 
Benton v. Barnet, 787. 

V. Nieholl, 15, 381. 
V. Sumner, 195. 
Berdan v. Sedgwick, 651, 658, 881. 
Berdell v. Berdell, 21, 24. 
Bergen v. Bennett, 698. 

V. Carmen, 1050. 
Bergens Savings Bank v. Barrows, 278. 
Bergen v. Urbahn, 305, 355, 813. 
Berkshire Life Ins. Co. v. Hutchings, 

601. 
Bernhardt v. Lymburner, 965. 
Bernheimer v. Willis, 874. 
Berry v. Mutual Ins. Co., 43, 458. 

V. O'Connor, 96, 192. 
Berryhill v. Kirchner,'492. 
Besser v. Hawthorn, 364, 365. 
Best V. Brown, 569. 
Bethlehem v. Annis, 33. 
Bettison v. Budd, 28. 
Betts, in re, 204, 206. 

V. Birdsall, 1035. 
Betz V. Heebner, 300. 
Bevier v. Covell, 633. 

V. Schoonmaker,9i9, 1074, 11 54. 
Bicknell v. Byrnes, 832, 933, 938, 994. 
Biddle v. Brizzolara, 830. 
Bidwell V. Northwestern Ins. Co., 535. 
Bierce v. Red Bluff, 493. 
Bigelow V. Bush, 740, 742, 748, 853. 

V. Cassedy, 689. 
Biggins V. Brockman, 363. 
Bigier v. Waller, 238. 
Bill V. Fish, 634. 
:.. Hall, 731. 
Billington v. Forbes, 979. 

V. Wagoner, 218, 2ig, 662, 
668. 
Billings V. Billings, 92. 
Bingham v. Kirkland, 478, 492. 
Binsse v. Paige, 575, 596. 
Bird V. Belz, 820. 
V. Keller, 23. 
Birdsall v. Patterson, 632, 649. 
Birke v. Abbott, 446, 590. 
Birmingham Iron Foundry v. Hatfield, 

778. 
Birnie v. Main, 381. 



Eeferences are 
to Sections. 



INDEX TO CASES CITED. 



XIX 



Bishop V. Allen, 97, 466. 

V. Bishop, 166. 

V. Schneider, 464, 470. 
Bissell V. Bugbee, 576. 

V. Kellogg, 2CX3, 425, 665, 666, 
669. 
Bixby V. Smith, 998. 
Black V. Kuhlman, 626. 
Blade v. Noland, 813. 
Blair v. Ward, 383, 384. 
Blake v. Dennett, 1109. 
Blakely v. Calder, 998, 1005. 
Blancke v. Rogers, 180. 
Blancow v. Bugby, 1 57. 
Blanco v. Foote, 1077. 
Blazey v. Delius, 944, 947. 
Bleeckerz/. Graham, 1154. 
Bliss V. Wallis, 917. 
Blodgett V. Hitt, 452. 
Blood V. Humphrey, 607. 
Bloom V. Burdick, 782, iioi. 

V. Noggle, 46, 487. 
Bloomer v. Mclnerny, 633. 

V. Sturges, 730, 744, 745, 1022. 
V. Waldron, 81. 
Bloomingdale v. Barnard, 408. 
Blossom V. R.R. Co., 924. 
Blumenthal v. Jassoy, 308. 
Blunt V. Norris, 321. 

V. Syms, 257, 259. 
Blydenburgh v. Northrop, 622, 1053, 

1058. . 
Blyer w. Monholland, 216, 273, 572, 

579. 591. 598. 
Board of Supervisors of Iowa Co. v. 

Mineral Point R.R. Co., 845. 
Board of Supervisors of Tompkins Co. 

V. Bristol, 350. 
Boarman v. Catlett, 444. 
Bockes V. Hathorn, 310, 335, 441, 917. 
Bodine v. Edwards, 969. 
Bodkin v. Merritt, 1027. 
Bogart, Matter of, 549. 
Bogert V. Bogert, 826. 

V. Furman, 1062. 
V. Hertell, 298, 299, 348. 
Bollesi'. Beach, 565. 
V. Carli, 284. 
V. Chauncey, 208, 501. 
V. Duff, 237, 716, 775, 835, 888, 
889, 891, 902, 1030, 1076, 
1077, 1083. 
V. Wade, 336. 
Boiling V. Munchen, 778. 
Bollinger v. Choteau, 731. 
Bolton V. Brewster, 235, 241. 
Bonesteel v. Sullivan, 848. 



Bonham v. Gallaway, 210. 
Bool V. Mix, 857. 
Boon V. Pierpont, 410. 
Booth V. Barnum, 95, 97, 476. 
V. Kehoe, 155. 
V. Packet Co., 245, 253, 264. 
V. Swezey, 332. 
Boqut V. Coburn, 675, 680. 
Bordewell v. Colie, 333. 
Borland v. Walrath, 462. 
Borst V. Boyd, 410, 696. 
V. Crommie, 49. 
■V. Corey, 53, 341, 414. 
Boston Bank ». Chamberlin, 134. 
Boston & N. Y. Air-Line R.R. Co. v. 

Coffin, 159. 
Bostwick V. Frankfield, 364. 
V. McEvoy, 24. 
V. Menck, 794. 
Boswell V. Goodwin, 192, 199, 200, 201. 
Bosworth Tj. Vandewalker, 782. 
Bottineau v. Ins. Co., 1105. 
Boughton V. Smith, 648. 
Bowen v. Beck, 567. 
V. Bell, 193. 
V. Kaughran, 1051. 
V. Kurtz, 565, 576. 
V. Mandeville, 1089. 
Bowers v. Johnson, 44, 306. 
Bowery Nat. Bank v. Duncan, 22. 
Bowery Savings Bank v. Richards, 904. 
Bowes V. Seeger, 347. 
BowUng V. Cook, 344, 458. 
Bowman v. Manter, 443. 
Bowne v. Lynde, 274, 591, 960. 
Boyd V. Anderson, 850. 
V. Dodge, 913. 
V. Mundorf, 478. 
Boyle V. Williams, 740, 750, 800. 
Boynton v. Jack way, 1031. 
Bozarth v. Landers, 843, 844. 
Brackett v. Barney, 643. 

V. Baum, mi, 11 13. 
V. Sears, 193. 
V. Wyman, 993. 
Bradley v. Bosley, 54, 60, 71. 

V. Snyder, 1027. 
Brady z/. Waldron, 181, 183. 
Bragdon v. Hatch, 1 109. 
Brainard v. Cooper, 675, 685, 710, 730, 

1028. 
Bram v. Bram, 751. 
Braman v. Bingham, 416. 
V. Dowse, 338. 
•v. Hess, 661. 
Bramhall v. Flood, 95. 
Brant v. Robertson, 38. 



XX 



INDEX TO CASES CITED. 



Beferetices are 
to Sectiona. 



Brasher v. Cortlandt, 995. 
Brasted v. Sutton, 287. 
Brazer v. Lancaster Bank, 292. 
Breckenridge v. Brooks, 248, 259. 
Breese v. Bange, 170, 1017. 

V. Busby, 976. 
Breevoort v. Mcjimsey, 145. 
Bremen -v. Whitaker, 172, 180. 
Brevoort v. Brevoort, 734, 736. 
V. Jackson, 953. 
V. Randolph, 261, 691. 
Brewer v. Staples, 273, 274, 571, 722. 
Brewster v. Games, 354, 498. 
V. Clamfit, 193. 
V. Wakefield, 98, 628. 
Brick V. Brick, 18, 674. 
Brickell v. Batchelder, 818. 
Bridge V. Hubbard, 652. 
Bridgeport v. N. Y. & N. H. R.R. Co., 

114. 
Brigden v. Garhart, 292. 
Briggs V. Briggs, 978. 
V. Dorr, 300. 
V. Partridge, 570. 
Bright V. Piatt, 149. 
Brinckerhoff v. Thallheimer, 943. 
Brink V. Hanover Fire Ins. Go., 543. 
Brinkerhoff w. Brown, 702. 

V. Lansing, 211, 389, 495, 

714,715, 1083, 1131. 
V. Marvin, 192, 200. 
Brinkman v. Jones, 236. 
Brinkmyer v. Browneller, 199, 200. 

V: Helbling, 195, 199. 
Brisco V. Earl of Banbury, 494. 
Briscoe v. Power, 273, 274. 
BriscoU V. Bronaugh, 69. 
Britton's Appeal, 290. 
Britton v. Hunt, 731. 
Bristol V. Morgan, 749. 
Brock way v. Wells, 717, 920. 
Broderick v. Smith, 231. 
Brodribb v. Tibbetts, 818. 
Broman v. Young, 155. 
Bronner v. Loomis, 505. 
Bronson v. LaGrosse & Milwaukee 

R.R. Co., 879. 
Brooklyn Park Com. v. Armstrong, 

1000. 
Brooks V. Avery, 638, 647. 

V. Rice, 365. 
Brown v. Belts, 1 1 59. 
V. Brown, 727. 

V. Blydenburgh, 334, 354, 355. 
V. Byam, 60. 
V. Ghamplin, 633. 
V. Cherry, 1129. 



Brown v. Clifford, 18, 19. 

■u. Dean, 1 5, 472. 

V. Delany, 1105. 

V. Dewey, 18, 19, 34, 35, 36, 38. 

V. Dickerson, 862. 

V. Frost, 698, 837, 954, 966, 969, 
972. 973. 988, 1020. 

V. Gaffney, 21. 

V. Hermann, 612. 

V. Henry, 420. 

V. Johnson, 705. 

V. Johnston, 322. 

V. Jones, 13. 

V. Keeney Settlement Cheese 
Association, 181, 845. 

V. Kiefer, 192, 195. 

V. Lapham, 338, 364. 

V. Lynch, 13. 

V. Marzyck, 102 1, 1034. 

■V. Mott, 661. 

V. Nichols, 784. 

V. Phillips, 27. 

V. Simons, 958. 

V. Smith, 1 142. 

V. Snail, 712. 

V. Volkening, 384, 492, 752, 845. 

V. Welsh, 1 1 36. 

V. Wilbur, 520. 

V. Willis, 830. 
Browning, in re, 1003, 1004. 
Brownlee v. Martin, 674. 
Bruce v. Bonney, 299, 445. 
Brundage v. Domestic and For. Mis,s. 

Soc, 751. 843- 
Brundred v. Walker, 338. 
Bruenich v. Weselmann, 328. 
Brumley v. Fanning, 183. 
Brunson v. Brooks, 492. 
Bruse v. Nelson, 433. 
Bryan v. Butts, 23, 1148, 1151. 

V. Howland, TJ. 
Bryant v. Damon, 294. 

V. Pennell, 160. 

V. Pollard, 337. 

V. Stephens, 48. 

V. Vix, 308. 
Bryer's Appeal, 364. 
Buchan v. Sumner, 104, 105, 1049. 
Buchanan v. Griggs, 135, 857. 

V. Life Ins. Co., 230, 895. 
Buck V. Phcenix Ins. Co., 529, 530, 

531- 
V. Seymour, 158. 
Buckingham v. Corning, 667. 
Buckley v. Garrett, 557. 

V. Wells, 606. 
Bucklin v. Bucklin, 92, 100, 113, 837. 



^ferences are 
to Sections. 



INDEX TO CASES CITED. 



XXI 



Buckmaster v. Kelly, 877. 

Buckout V. Swift, 184. 

Budd V. Van Orden, 22, 33. 

Buffalo Savings Bank v. Newton, 987. 

Buffalo Steam Engine Works v. Sun 

Mut. Ins. Co., 535, 536, 544, 555- 
Building Association v. Piatt, 205. 

V. Whitacre, 467. 
Bulkley v. Dayton, 347. 

V. Hope, 366. 
Bull V. Titsworth, 598. 
Bullard v. Raynor, 647, 648, 652. 
BuHwinkle v. Ryker, 793, 828. 
Bullock V. Battenhousen, 95. 
Bumpas v. Datson, 95. 
Bumpus V. Platner, 600, 859. 
Bunce v. Reed, liio, 1127, 1151. 
Bunker v. Anderson, 79. 
Burbank v. Gould, 577. 

V. Warwick, 308. 
V. Wiley, 105. 
Burchard v. Fraser, 865. 

V. Phillips, 1 06 1. 
Burdick v. Jackson, 46, 51. 
Burger v. Hughes, 46, 54, 377. 
Burhans v. Hutcheson, 308, 344. 
Burkam v. Burk, 77, 850. 
Burke v. Adair, 1 1 50. 
V. Nichols, 859. 
Burlingame v. Parce, 887. 

V. Robbins, 66. 
Burnet v. Denniston, 292, 402, 682, 685, 

1 121, 1 122, 1 129, 1130. 
Burnett v. Pratt, 343, 721. 
Burney v. Lyman, 107. 
Bumham v. De Bevorse, 731. 
Burnhisel v. Firman, 628. 
Burns v. Collins, 546. 
V. Thayer, 391. 
Burr V. Beers, 576, 582, 583, 585. 

V. Veeder, 261, 448, 691, 809. 
Burrall v. De Groot, 667. 
' Burroughs v. Reiger, 758, 760. 
Burrs v. Burrs, 291. 
Burt V. Dewey, 333. 

V. Saxton, 204, 206. 
Burtis' Adm'r v. Wait, 341, 610. 
Burton v. Reagen, 436. 
Buse V. Page, 31. 
Busenbarker v. Rainey, 850. 
Buswell z'. Poineer, 391. 
Bush V. Bush, 96, 850. 
V. Cooper, 29. 
V. Lathrop, 310, 312, 317, 318, 

319- 
V. Livingston, 671. 
V. Sherman, 971. 



Bush V. White, 28. 
Bunn V. Vaughan, 724. 
Butcher v. Stultz, 1 3. 
Butler v. Blackman, 818. 

V. Miller, 212, 373, 393. 

V. Page, 167. 

V. Price, 413. 

V. Tomlinson, 758, 760. 

V. Viele, 487, 1028. 
Butterfield v. Okie, 66. 
Butterworth v. O'Brien, 663. 
Butts V. Broughton, 48, 251. 
V. Peacock, 96. 

Cabeen v. Breckenridge, 492. 
Caconillat v. Rene, 468. 
Cadman v. Peter, 19. 
Cady V. Jennings, 87. 
V. Sheldon, 298. 
Cage V. Her, 293. 
Cain V. Hanna, 293. 
Calhoun v. Lumpkin, 33, 235. 
Calkins v. Calkins, 415. 

V. Isbell, 415, 696, 710, 920. 
V. Munseli, 713. 
Galium V. Branch Bank of Mobile, 455. 
Calvo V. Davis, 216, 217, 446. 
Cambridge Valley Bank v. Delano, 494. 
Camden v. Alkire, 17. 

V. Vail, 60. 
Cameron v. Chappell, 638. 

V. Irwin, 700, 11 29. 
Camp V. Coxe, 1086. 
Campbell, Matter of, 341. . 
V. Campbell, 266. 
V. Dearborn, 15, 38. 
V. Hall, 773. 
V. Macomb, 186, 205, 943, 

944- 
V. Roach, 71. 
V. Smith, 576, 587, 1093. 
V. Swan, 972, 1125. 
V. Trotter, 433. 
V. Vedder, 360, 364, 365, 497, 

498- 
Campion v. Kille, 290. 
Canal Appraisers v. The People, 126. 
Canal Commissioners v. The People, 

126. 
Canandaigua Academy v. McKechnie, 

26, 464. 
Candee I/. Burke, 11 18, 11 37, 11 38. 
Candler v. Pettit, 794. 
Canfield v. Shear, 565. 
Cannon v. Kriepe, 274. 
V. McNab, 15. 
Capehart v. Biggs, 11 30. 



XXI 1 



INDEX TO CASES CITED. 



B^erences are 
to Sections. 



Capehart v. Dettrick, 229, 414. 
Card V. Bird, 621. 
Carey v. Rawson, 13. 
V. Reeves, 850. 
Carley v. Fox, 567. 
Carlisle v. Wilkin's Admr., 341. 
Carleton v. Jackson, 338, 363. 
Carman ,v. Pultz, 347, 403. 

V. Trude, 333. 
. Carmichael v. Adams, 847. 
Carnahan v. Tousey, 601. 
Carow V. Kelly, 647. 
Carpenter v. Black Hawk Gold Min- 
ing Company, 100, 1 14, 
123, 1104, 1133. 
V. Blote, 200. 
V. Bowen, 23. 
v. Brenham, 1027. 
V. Longan, 308, 310, 315. 
V. Manhattan Life Ins. Co., 

191. 
V. O'Dougherty, 42, 302, 303, 

324, 720. 
V. Providence - Washington 

Ins. Co., 531. 
V. Walker, 178. 
Carper v. Hunger, 298. 
Carr v. Carr, 13. 
Carradine v. Wilson, 645. 
Carriage Co. v. Kinsella, 672. 
Carrington v. Brentz, 766. 
Carroll v. Deimel, 776. 
Carson v. Byers, 96. 

V. Ingalls, 671. 
Carstan v. David, 608. 
Carter v. Goodin, 620. 
V. Holahan, 590. 
V. Rockett, 546. 
V. Walker, 626. 
Caruther v. Hall, 274. 
Cary v. Bancroft, 360. 

V. White, 482. 
Caryl v. Williams, 303, 874. 
Case V. Carroll, 678. 
V. Hall, 333. 
V. Peters, 19. 
V. Price, 736. 
Casenove v. Cutler, 259. 
Casey v. Buttolph, 235, 367. 
Cashman v. Henry, 566, 590, 612. 

V, Martin, 400, 962. 
Cason V. Chambers, 413. 
Cassidy v. Schedel, 215. 
Catlin V. Grissler, 936. 
V. Harned, 912. 
Catterlin v. Armstrong, 1028. 
Caulkins v. Bolton, 724. 



Cawley v. Kelley, 847. 

Cavander v. Bulteel, 105, 106. 

Cazet V. Hubbell, 967, 995. 

Central Gold Mining Co. v. Piatt, 123, 

"33- 
Central National Bank of New York v. 

Clark, 987. 
Cerf t/. Ashley, 718. 
Chadborn w. Rahilly, 281. 
Chafee v. Fourth Nat. Bank, 17. 
Chalmers v. Turnipseed, 933. 

?/. Wright, 25s, 698, 711, 
1 1 50. 
Chamberlain v. Beck, 787. 

V. Choles, 1037. 
V. Dempsey,652, 667,913, 
928. 
Chamberlin v. Lyell, 741, 751, 823. 
Champion v. Brown, 66, 67. 
Champlin v. Laytin, 866. 
Champney v. Coope, 336, 337, 364, 

441, 443- 444- 
Chandler v. Chandler, 71. 
V. Dyer, 292, 675. 
V. White, 345. 
Chapin v. First Universalist Church, 
299. 
V. Thompson, 659. 
Chapman v. Chapman, 345. 
V. Draper, 765. 
V. Foster, 614. 
V. Jenkins, 208, 2H. 
V. Liggett, 52, 58. 
V. Robertson, 870. 
V. West, 765. 
Charter v. Stevens, 11 29. 
Chase v. Box, 362. 
Chase's Case, 38. 
Chase v. Ewing, 103. 

V. Peck, 47, 64, 74, 235, 241, 445, 

699. 
V. Steel, loj. 
V. Welsh, 488. 
V. Wingate, 165. 
V. Woodbury, 274. 
Chautauqua Bank v. White, 328. 
Chateau v. Thompson, 439. 
Chauncey 7/. Arnold, 87. 
Cheesebrough v. Millard, 277, 382, 383, 

449- 
Cheney v. Woodruff, 531, 1020. 
Cherry v. Monro, 274, 571, 685, 722. 
Chesebro v. Tilden, 635. 
Chester v. Bank of Kingston, 99. 

V. King, 742. 
Chesterman v. j^ardner, 859. 
Chew V. Brumagen, 743. 



Ee/erences are 
to Sections. 



INDEX TO CASES CITED. 



XXIU 



Cheww. Chew, 431. 

Chicago Lumber Co. v. Ashworth, 86. 

Chicago R.R. Co. v. The People, 1 14. 

Chiekering v. Faile, 29. 

Childs V. Childs, 238, 1027. 

Chiles V. Wallace, 163. 

Chipman v. Tucker, 91. 

Chittenden v. German- Amer. Bank,i 1 1 . 

Cholmondeley v. Clinton, 713. 

Choteauz/. Thompson, 199, 209. 

Christian v. Cabelt, 1 001. 

Christie v. Herrick, 743. 

Christner v. Brown, 215. 

Christy v. Fisher, 29. 

Christopher v. Christopher, 65. 

Church V. Brown, 1 57. 

V. Gilman, 90, 568. 

V. Kidd, 908. 

V. Maloy, 219, 668, 671. 
City Council of Charleston v. Ryan, 

345- 
City National Bank and York County 

National Bank, Appeals of, 286. 
City of Norwich v. Hubbard, 149. 
Claubaugh v. Byerly, 281. 
Claflin v. Ostrom, 298. 
V. Reese, 232. 
Clark V. Binninger, 885. 

V. Brown, 284, 287. 

V. BuUard, 282. 

V. Bush, 243. 

V. Clark, 367. 

V. Cleveland, 774. 

V. Dales, 206. 

V. Davis, 867. 

V. Disson, 324. 

V. Finlan, 247. 

V. Fontain, 381. 

V. Hall, 52, 288. 

V. Harens, 769. 

v. Henry, 18, 674. 

V. Iglestrom, 305, 355. 

V. Lyon, 16. 

V. Mackin, 448, 500. 

V. Munroe, 286, 621. 

V. Rayburn, 191. 
[v. Reyburn, 736. 

V. Robins, 259. 

V. Rowling, 380. 

V. Sickler, 226, 594. 

V. Sisson, 326. 

V. Smith, 253, 256, 259. 

V. Wat.obn, 472, 
Clarke v. Roberts, 319. 
V. Sheehan, 634. 
Clark's Case, 1060. 
Clarkson v. Read, 995. 



Clarkson v. Skidmore, 1057. 
Clary v. Owen, 174. 
Clason V. Corley, 885, 1020. 

V. Morris, 444. 
Claverly v. Phelp, 736. 
Clay V. Banks, 338. 

V. Hildebrand, 792, 850. 
Cleaver v. Green, 1137. 
Clemens v. Clemens, 736. 
Clement's Ex'rs v. Bartlett, 477. 
Clementson's Ex'r v. Streeter, 859. 
Cleveland v. Boerum, 732, 755, 765, 

857. 
Clevinger «<. Ross, 492, 1135, 1137. 
Clift V. Nay, 436. 

V. White, 364, 367. 
Clinie v. Wood, 166. 
Clinton v. Hope Ins. Co., 555. 
Clove V. Lambert, 166. 
Clowes V. Dickinson, 271, 280, 958, 965. 
Clute V. Emmerich, 448, 467, 477, 930. 

V. Robison, 310. 

V. Voris, 1014. 
Coari v. Olsen, 492. 
Coates V. Cheever, 624, 625. 
Cobb V. Dyer, 431, 436. 

V. Thornton, 830, 832. 

V. Titus, 661. 
Coburn v. Anderson, 36, 37. 
Cochran v. Flint, 180. 
Coddington v. Bispham, 896. 
Coe, Trustee, z>. Pennock, 158. 
Coffey V. Hunt, 24. 
Cogswell V. Cogswell, 57, 268. 
Cohn V. Colby, 341. 

V. Hoffman, 365. 
Cohoes Co. V. Goss, iioi, 1105, 1148. 
Coit V. Fougera, 62. 

V. Houston, 398. 
Colburn v. Morton, 990. 
Cole V. Bausemer, 647. 

V. Duncan, 341. 

v. Germania Fire Ins. Co., 545. 

V. Hall, 143. 

■V. Malcolm, 378, 447, 448, 685. 

V. Moffitt, noi. 

V. Sackett, 212, 376, 391. 

V. Savage, 653, 667, 11 30. 
Colehour v. State Savings Institution, 

149. 
Coleman v. Eraser, 136, 449. 

V. Manhattan Beach Imp. Co., 

79- 
V. Post, 99. 

V. Van Rensselaer, 103, 303. 
Coles V. Appleby, 274, 336, 441, 958.. 
V. Coles, 23, 1 10, 620. 



XXIV 



INDEX TO CASES CITED. 



Seferences are 
to Sections. 



Coles V. Forrest, 736. 

z/. Marble, 15. 
Colgrove v. Tallman, 594, 723. 
Collahan v. Linthicum, 557. 
Collard v. Huson, 281, 293. 
Colliers. Faulk, 192, 194. 

V. Whipple, 964, 966, 983. 
Collins, /« re, 827, 1092. 

V. Carlile, 193. 
Collins' Petition, 7501 
Collins V. Riggs, 692. 

V. Rowe, 571, 573, 596, 878. 

V. Standish, 11 53. 

V. Torry, 338, 363, 620, 624. 
CoUis V. Day, 134. 
CoUumb V. Reid, 104. 
Columbia Bank v. Jacobs, 433. 
Columbia Ins. Co. v. Lawrence, 546. 
Colwell V. Woods, 15. 
Coman v. Lakey, 51, 121. 
Combs V. Hawes, 18. 
Comer v. Allen, 609. 
Commercial Bank 7/. Cunningham, 192, 

193- 

Commercial Ins. Co. v. Spankneble, 
540. 

Commissioners of the United States 
Deposit Fund v. Chase, 528. 

Commonwealth v. Councils of Pitts- 
burgh, 331. 

Comstockw. Drohan, 567,577,591,1093. 

Concklin v. Hall, 1005. 

Concord Union Mut. Ins. Co. v. Wood- 
bury, 552, 555. 

Condit V. Baldwin, 641. 

Cone 2/. Combs, 887. 

Conger v. Duryee, 1027. 
V. Lancaster, 103. 
V. Ring, 990. 

Congregation Beth-Elohim v. Central 
Presbyterian Church, 128. 

Conkling v. Secor Sewing Machine Co., 
118, 122, 881. 

Connard v. Colgan, 90. 

Connecticut v. Jackson, 630. 

Connecticut Mut. L. Ins. Co. v. Bul- 
tee, 29. 

Connecticut Mut. L. Ins. Co. v. Tyler, 

593- 
Connelly v. Dickson, 885. 
Connor v. Eddy, 27. 
Conover v. Hobart, 640. 

V. Mut. Ins. Co., 540. 
Conrad v. Atlantic Ins.' Co., 192. 
Conroy v. Fuller, 309. 
Constant v. American Home Mission 

Societyi 493. 



Conway's Ex'rs v. Alexander, 31,33, 4°- 
Conwell V. McCowen, 89. 
Cook v. Banker, 65, 289. 
V. Barnes, 670. 
V. Clark, loi. 
V. Craft, 261, 289, 291. 
■V. Culbertson, 252, 255. 
V. Kraft, 65. 
V. Mancius, 1066. 
V. Ottawa University, 253. 
V. Shone, 282. 

V. Travis, 478, 479, 480, 491, 492. 
Coolidge V. Brigham, 333. 
Coombs V. Jordan, 94. 
Cooper V. Bigly, 383. 
V. Brook, 15. 
V. Foss, 576, 851. 
V. Hornsby, 1128. 
V. Jackson, 29. 
V. Newland, 298, 302, 304. 
Cope V. Wheeler, 76, 644, 645, 881, 

1062, 1154. 
Coppin V. Fernyhough, 494. 
Corbett v. Woodward, 308. 
Cord V. Hirsh, 742. 
Cordova v. Hood, 60, 61, 68. 
Cordts V. Hargrave, 569. 
Corley v. Lashley, 950. 
Corlies v, McLagin, 167, 172. 
Corn Exchange Ins. Co. v. Babcock, 

6i6, 618. 
Cornell v. Corbin, 865. 
V. Hall, 31, 38. 
v. Fresco tt, 216, 273, 579, 591, 

592, 723- 
V. Woodruff, 28, 934. 
Corner v. Sheehan, 896, 990. 
Corning z/. Smith, 751, 834, 843, 1018, 

1054. 
Cornish v. Abington, 345. 
Cornog V. Comog, 620. 

V. Fuller, 344, 458. 
Corpman v. BacCastow, 472. 
Corwin v. CoUett's Ex'rs, 369. 

V. Wesley, 333. 
Costello V. Mead, 345. 
Coster, Matter of, 355, 837. 

V. Clarke, 998. 
Costigan v. Newland, 11 54. 
Cottrell's Appeal, 447. 
Couch V. Millard, 908. 
Coulton zi. Jackson, 446. 
Coursen v. Canfield, 867. 
Courser's Will, 731. 
Coutant V. Servoss; 81, 275, 387, 388, 

856. 
Covell V. The Tradesmen's Bank, 317. 



References are 
to SecUmis. 



IKDEX TO CASES CITED. 



XXT 



Coudrey v. Carpenter, 960. 
V. Coit, 600, 862. 
Cowley V. McLaughlin, 477. 

V. Shelby, 79, 98, 448. 
Cox V. Esteb, 850. 
V. Hoxie, 202. 
V. McBurney, 1062. 
V. Ratcliffe, 24. 

I/. Wheeler, 446, 722, 944, 1 127, 
1 128. 
Coy V. Downie, 858. 
Coyle V. Davis, 19, 381. 
Craddock v. Thurley, 1006. 
Crafts V. Aspinwall, 59. 
Craig V. Parkis, 227, 298. 

V. Tappin, 193, 197, 200, 203. 
Crain v. McGoon, 396, 398. 
Cram v. Bradford, 805. 

V. Hendricks, 661. 
Cramer v. Benton, 876. 

V. Lepper, 652, 878. 
Crane v. Board, etc., 60. 
V. Bonnell, 38. 
V. De Camp, 1 5, 
V. Deming, 199. 
V. Evans, 354. 
V. Hubbel, 671. 
V. McDonald, 707. 
V. Stiger, 979. 
V. Turner, 50, 76, 297, 314, 458, 

459. 479. 498. 500- 
V. Ward, 228. 
Craver v. Wilson, 883. 
Crawford v. Edwards, 567. 
Cremer v. Higgin'son, 360. 
Crippen v. Morrison, 180. 
Critcher v. Walker, 36. 
Crippen v. Culver, 1005. 

V. Heermance, 54, 377, 632, 
649, 670, 671. 
Crocker v. Crocker, 312. 

V. Whitney, 132, 362. 
Croft V. Bunster, 308, 310. 
Crofts V. Crofts, 680. 
Crofut V. Wood, 494. 
Crogan v. Spence, 75 1; 
Croghan v. Livingston, 782. 

■v. Miner, 72. 
Cromwell v. The Brooklyn Fire Ins. 
Co., 546, 5SS. 
V. Hull, 937. 
Crooke v. O'Higgins, 742. 
Crooker v. Holmes, 414, 712. 
Crowe V. Lewin, 599. 
Crowell V. Currier, 604. 

V. Hospital, etc., 604. 
CuUinick v. Swindell, 174. 



CuUum V. Erwin, 294. 
Culver V. Badger, 569, 598. 

V. Bigelow, 638. 

V. Harper, 621. 

V. Sisson, 103. 
Cumberland v. Codrington, 266. 

Coal Co. V. Hoffman, 990. 
Co. V. Sherman, 990. 
Cunningham v. Buckingham, 492. 

V. Cassidy, 280, 950, 952, 

976. 
V. Knight, 286. 
Cupfer V. Frank, 832. 
Currie v. Cowles, 876. 
Curry v. Schmidt, 167. 
Curtis V. Bush, 600, 859, 862. 

V. Flinn, 97. 

v. Gooding, 1027. 

V. Hitchcock, 759, 769. 

V. Leavitt, 663. 

■V. McDougal, 134. 

V. Root, 284. 

V. Tyler, 575, 579, 749, 829. 

V. Williamson, 570. 
Curtiss V. Tripp, 395. 
Cushman v. Luther, 99. 
Cuthburt V. Haley, 645. 
Cutler V. Ammon, 70. 

V. Davenport, 76, 298. 
Cutting V, Lincoln, 1064. 
Cutts V. Guild, 319, 

Dailey v. Abbott, 235. 
Daily v. Kingon, 789, 823. 
Dale V. McEvers, 261, 685, 691. 
Daly V. Burchell, 742, 761. 

V. Jacott, 941. 
Daniel v. Coker, 245. 
Danner Land & Lumber Co. v. Ins. 

Co., 19. 
Danzeisen's Appeal, 13. 
Darby v. Freedman's Savings, etc., Co., 

610. 
Darcy v. Blake, 892. 
Darling v. Rogers, 84. 
Darst V. Bates, 208, 281. 
V. Gale, 193, 439. 
Dart V. McAdam, 873. 
Darvin v. Hatfield, 716. 
Dauchy v. Bennett, 685, 687, 688. 
Daughady v. Paine, 68. 
Davenport v. Cummings, 96. 

V. Shants, 178, 180. 

V. Turpin, 731, 836. 

V. Widowell, 850. 
Da\ idrow v. Westchester Gaslight Co., 
124. 



XXVI 



INDEZ TO OASES CITED. 



Beferenc&i are 
to Sections. 



Davies v. Austin, 310, 649. 
Davis V. Barr, 310. 

V. Bean, 261. 

V. Bechstein, 310, 322, 847. 

V. Clarlc, 865. 

V. Dendy, 258, 259. 

V. Dresback, 13. 

V. Duffie, 705, 717. 

V. Eastham, 18. 

V. Fargo, 362. 

V. Hamilton, 68. 

V. Hardy, 593. 

V. Hulett, 567. 

v. Ins. Co., 544. ' 

V. Maynard, 390. 

V. Pearson, 66. 

V. Winn, 682. 
Davison v. De Freest, 864, 1062. 
Daws V. Craig, 436, 437. 
Day v. Mooney, 364, 568. 

V. Perkins, 42, i66, 173, 790. 
V. Strong, 400, 406, 409, 686, 692. 
Dayhuff v. Dayhuflf, 72. 
, Dayton v. Melick, 865. 
Dean v. Anderson, 46. 

V. Applegarth, 230. 

V. Walker, 590. 
Deane v. Hutchinson, 458. 
Dearborn v. Cross, 204. 
De Armond v. Preachers' Aid Soc.,625. 
Decker v. Boice, 483, 498, 500, 1 1 14, 
1129, 1 141. 
V. Clarke, 458. 
De Forest v. Farley, 948, 1005, 1017, 
1044. 
V. Fulton Fire Ins. Co., 
S46. 
Degerraand v. Chamberlin, 569. 
De Grant v. Graham, 1083. 
Dela V. Stanwood, 249. 
Delacroix v. Bulkley, 204. 
Delancey v. Stearns, 314, 482. 
Delaplaine v. Lewis, 742. 
De Lashmitt v. Sellwood, 1028. 
De la Vergne v. Evertson, 911, 919. 
Delaware Bank v. Jarvis, 333, 746. 
D. & H. Canal Co. v. Bonnell, 879. 
Del., L. & W. R.R. Co. v. Burkhard, 213. 
V. Scranton, 969. 
Delespine v. Campbell, 731. 
De Leuw v. Neely, 809. 
De Lisle v. Herbs, 365. 
Demainville v. Mann, 155. 
Demaray v. Little, 979. 
Demarest v. Berry, 251. 

V. Wynkoop, 695, 1 105, 1 140, 
1 149, 1150. 



Demott V. Stockton Paper Ware Mfg. 

Co., 455. 
Den V. Wright, 235. 
Denham v. Cornell, 1062, 1064. 
Denick v. Hubbard, 223. 

V. N. Y. & R. Lime, etc., Co., 1 22. 
Denning t/. Smith, 519, 520, 521, 522, 

523- 
Denston v. Morris, 859. 
Denton v. Cole, 337. 

V. Nanny. 622, 730, 731, 1058. 
V. Noyes, 784. 
Depew V. Dewey, 971, 1137. 
De Pierras v. Thorn, 47. 
De Ruyter v. St. Peter's Church, icxs, 

114, 127, 1053, 1071. 
Despard v. Walbridge, 18. 
De Stuckle v. Tehuantepec R.R. Co., 

917. 
Detweiler v. Breckenkamp, 228. 
Devitt V. Sullivan, 1020. 
Devlin v. Murphy, 601. 
V. Shannon, 656. 
Dewey v. Brownell, 253, 256. 

V. Ingersoll, 384. 
De Witt V. Brisbane, 883. 

V. Van Sickle, 310, 321. 
De Wolf z/. Capital City Ins. Co., 537. 
V. Johnson, 632, 652, 653. 
V. Sprague Mfg. Co., 17. 
Dey V. Dunham, 16, 472, 487. 
Deyermand v. Chamberlain, 598. 
Dezell V. O'Dell, 327. 
Dias V. Merle, 705, 707. 
Dial zi. Reynolds, 72. 
Dibblee v. Mitchell, 17. 
Dick V. Ins. Co., 530, 562. 
V. Livingston, 680. 
V. Maury, 455. 
Dickason v. Williams, 363. 
Dicke V. Wright, 87. 
Dickerman v. Lust, 767. 
Dickerson v. Small, 929. 

V. Tillinghast, 482. 
Dickey v. Land Co., 672. 
Dickinson v. Codwise, 610. 

V. Dickey, 926. 
Dickson v. Chorn, 275. 
V. Frazer, 935. 
Dietz V. Farish, 917. 
Dillaye v. The Commercial Bank of 

Whitehall, 319. 
Dillon V. Anderson, 384, 493. 
Dime Savings Bank of Brooklyn v. 

Crook, 842. 
Dimon v. Bridges, 230. 

V. Dann, 230, 475. 



Beferences arc 
to Sections, 



INDEX TO CASES CITED. 



XXVll 



Dingley v. Bank of Ventura, 49, 58. 
Dings V. Parshall, 407, 448, 675. 
Dinkelspeil v. Franklin, 329. 
Distilled Spirits, The, 384, 493. 
Divinger v. Branigan, 52. 
D'lverness v. Leavitt, 143. 
Dix V. Van Wyck, 647, 657. 
Doctor V. Smith, 844. 
Dodd V. Neilson, 17, 731, 998. 

V. Parker, 461. 
Dodge V. Crandell, 204, 205, 847. 
V. Perkins, 98. 
V. Wellman, 13. 
Doe V. Beavan, 157. 
V. Carter, 157. 
V. Hogg, 157. 
V. Vallajo, 850. 
Doherty v. Stimmel, 487. 
Dollard v. Taylor, 987. 
Dolman v. Cook, 644. 
Donnington v. Meeker, 639. 
Dohohue v. Chase, 247. 
Doody V. Pierce, 360. 
Dooley v. Potter, 681. 
Doolin V. Ward, 993. 
Doolittle z/. Lewis, 351, 352, 727,728, 

1099, 1 100, 1 105, 1 129. 
Dorn V. Harrahan, 575. 
Dorr V. Dudderar, 181. 
V. Leach, 843. 
V. Peters, 565, 571, 577. 
Doty V. Baker, 623. 
Doubleday v. Kress, 354. 
Dougherty v. Colgan, 34, 255. 
Douglas V. Bishop, 381. 
Douglass V. Cross, 572. 
V. Durin, 342. 
V. Houston, 1062. 
V. Peele, 281, 460. 
■V. Satterlee, 299, 348. 
V. Wells, 602. 
V. Woodworth, ion, 1057. 
Dowe V. Schutt, 638. 
Dows V. Congdon, 713, 987. 

V. Morewood, 361. 
Downard v. Groff, 160. 
Downer v. Fox, 448. 
V. Smith, 29. 
Downing v. Marshall, 916. 
Downs V. Hopkins, 990. 
Doyle V. Peerless Pet. Co., 480. 
Dozierz'. Mitchell, 251, 850, 990. 
Drake v. Barker, 493. 
V. Wright, 467. 
Draper v. Mann, 381. 

V. Romejm, 218. 

V. Stouvenel, 613. ; 



Draper v. Trescott, 219, 662, 668. 
Drew V. Lockett, 444. 
Drexell v. Tyrrell, 884. 
Driggs V. Simson, 378. 
Drury v. Clark, 742, 748, 792. 
Dubois' Appeal, 300. 
Dubois V. Hull, 56, 61, 71. 

V. SchafFer, 43 1 . 
Duboisson v. Folkes, 218. 
Dudgeon v. Smith, 1074. 
Dudley v. Bergen, 431. 
Duff, Matter of, 987. 
Duffy V. McGuinness, 365. 
Dukes V. Turner, 681. 
Dumell V. Ferstagge, 208. 
Duncan v. Dodd, 973, 984, 986. 

V. Miller, 850. 
Dunham v. Cudlipp, 638. 

V. Dey, 208, 389, 390, 472. 
V. Minard, 410, 1004. 
Dunkley v. Van Buren, 827. 
Dunlop V. Avery, 459, 546, 547. 
Dunn V. Parsons, 388. 

V. Snell. 29. 
Dunning w. Fisher, 599, 600, 861, 1027. 
V. Leavitt, 242, 599, 600, 861. 
V. Merrill, 645. 
V. Ocean Nat. Bank, 1062, 
1063, 1 1 57. 
Dunshee v. Parmelee, 208. 
Durant v. Kenyon, 79. 
Durham v. Bischoff, 602. 
Durkee v. Nat. Bank of Fort Edward, 

482. 
Dusenbury v. Hurlburt, 121, 284, 287, 

856. 
Dutch Church v. Mott, 126, 128. 
Dutton V. Ives, 308. 
Duval 7/. Covenhoven, 464. 
Du Val V. Johnson, 86. 
Dyett V. Pendleton, 862. 
Dwight V. Newell, 65. 

V. Phillips, 765, 1014, 1 1 50, 

1151. 
V. Webster, 228, 231. 

Eagle Beneficial Society Appeal, 465. 
Eagle Fire Ins. v. Cammet, 734, 736. 
V. Pell, 261, 374, 691. 
V. Lent, 135, 730, 751, 
843.857,859, 1018, 
1054. 
Eagle Ins. Co. v. Flanagan, 1039, 1042. 
Fames v. Hardin, 18. 
Earle v. David, 1094. 

V. Hammond, 671. 
Earnshaw v. Stewart, 414. 



xxnu 



INDEX TO CASES CITED. 



Seferences are 
to Sections. 



Eastburn v. Kirk, 908. 
Eastman v Shaw, 639. 

V. Thayer, 712. 
Easton v. PickersgiU, 935, 936. 
Eaton V. Jaques, 155. 
V. Simonds, 259. 
V. Truesdail, 98. 
Eaves v. Estes, 178, 180. 
Eckford v. De Kay, 19. 
Eckerson v. VoUmer, 781. 
Eckert v. McBee, 40. 
Eddy V. Graves, 204. 

V. Traver, 277, 382. 
Edgerly v. Emerson, 444. 
Edrington v. Harper, 33, 38. 

Adm'r, v. Heffner, 427. 
Edwards v. Bodine, 859, 864. 

V. The Farmers' Fire Ins. & 
Loan Co., 398, 701, 1098. 
V. McKernan, 458. 
V. Wall, 19. 
Eggeman v. Harron, 295. 
Eiland v. Radford, 38. 
Eitel V. Bracken, 324, 328. 
Eisenberg v. Albert, 215. 
Elder v. Rouse, 103. 
Eleventh Avenue, Matter of opening, 

150. 
Eleventh Ward Savings Bank v. Hay, 

281. 
Elias V. Verdugo, 844. 
Elliot Five Cents Savings Bank v. 
Commercial Union Assurance Co., 

557- 
Elliot V. Plattor, 60. 

V. Wood, 16, 669, iioi, 1126, 
1 129, 1133. 
Ellis, Adm'r, v. Lemine, 294. 
Ellis V. Horrman, 490. 

V. Johnson, Trustee, 567, 602. 
V. Kreutsinger, 546. 
V. Lindley, 431. 
V. Messervie, 310. 
Ellison V. Pecare, 959. 
Ellsworth V. Lockwood, 407, 444, 687, 
688, 722, 951, 954, 95^,1125,1127. 
Elmendorf v. Lockwood, 742. 
Elmer v. Leper, 259. 
Elsberry v. Boykin, 90. 
Elston V. Piggott, 991. 
Elwell V. Chamberlain, 662. 

V. Grand St. ^ Newtown R.R. 
• Co., 159. 
V. Robbins, 919, 1074, 
Elwood V. Diefendorf, 220. 

V. Woolcott, 228. 
Ely V. Bush, 343. 



Ely V. Ely, 562. 

V. McNight, 310, 565, 592. 

V. Scofield, 334, 418, 421, 498. 

V. Wilcox, 492. 
Emanuel College v. Evans, 8. 
Emerson 7/. E. & N. A. R.R. Co., 159. 
Emery v. Gordon, 355. 
Emigrant Ind. Sav. Bank v. Clute, 456, 

843- 
Emigrant Ind. Sav. Bank v. Goldman, 

741, 751, 843, 844, 1018, 1019, 

1053, 1054. 
Emmons v. Hindman, 102, 181. 
Empire City Bank, Matter of, 143. 
Endel^'. Walls, 15, 238. 
English V. Carney, 293, 294. 
Engle V. Haines, 274. 

V. Underbill, 1096. 
Ennis v. Harmony Fire Ins. Co., 552. 
Enos V. Sutherland, 22. 
Ensign v. Colburn, 162, 181. 
Ensworth v. King, 90. 

V. Lamberts, 730, 852. 
Equitable Life Ass. Sy. v. Bostwick, 

573- 
Equitable Life Ass. Sy. v. Cuyler, 667, 

874. 
Equitable Life Ass. Sy. v. Stevens, 827 

1091, 1095. 
Erie County Savings Bank v. Roop, 

275. 
Erskine v. Townsend, 24. 
Erwin v. Shuey, 86. 
Esterly v. Purdy, 99. 
Estevez v. Purdy, 642. 
Etna Ins. Co. v. Finch, 721. 
Etzler V. Evans, 436. 
Evans v. Ellis, 310. 
Evans Gaslight Co. v. State ex rel. 

Reitz, 379. 
Evans v. Kimball, 365. 

V. White, Adm'r, 290. 
Everitt v. Huffman, 815. 

V. Strong, 298, 299. 
Evert V. McBee, 33. 
Evertson v. Booth, 279, 300. 

V. Central Bank, 449. 
V. Evertson, 310, 482. 
V. Johnson, 928. 
V, Sawyer, 155. 
V. Tappen, 624. 
Excelsior Fire Ins. Co. v. Royal Ins. 
Co. of Liverpool, 530, 544, 556, 559, 
560, 562. 
Exchange Fire Ins. Co. v. Early, 806, 

810. 
Eyster v. Gaff, 732. 



References are 
to Sections. 



INDEX TO CASES CITED. 



X3XX 



Fagen v. Davison, icxo. 
Fair v. Brown, 29. 
Fairbank v. Cudworth, 185. 
Fairchild v. Lynch, 363, 567, 572, 596. 

V. Fairchild, 104, 
Fairfield Savings Bank v. Chase, 493. 
Fake v. Eddy, loi. 
v. Smith, 333. 
Falis v. Conway Ins. Co., 678. 
Falkner v. Printing Co., 889, 896, 913. 
Fanning v. Dunham, 665, 666, 709. 
Fanshawe v. Lane, 112. 
Fargo V. Ames, 105. 
Farmer's Loan and Trust Co. v. Car- 
roll, r;. 
Farmer's Loan and Trust Co. z>. Dick- 
son, 758, 760. 
Farmer's Loan and Trust Co. v. Hen- 

drickson, 158. 
Farmer's Loan and Trust Co. v. Maltby, 

287, 458, 480. 
Farmer's Loan and Trust Co. v. Mil- 
lard, 919. 
Farmer's Loan and Trust Co. v. Sey- 
mour, 964, 1039, 1042. 
Farmer's Loan and Trust Co. v. Wal- 
worth, 357, 420, 422. 
Farmer's National Bank of Salem v. 

Fletcher, 333. 
Farnham v. Mallory, 829. 
Farrar ■z'. Chauffetete, 170. 
Fassett v. Mulock, 271, 298. 

V. Smith, 196, 431, 436. 
Faulkner v. Overturf, 790. 
Faure v. Winans, 261, 264, 548, 554, 

691, 809. 
Fay V. Grimsteed, 664. 
V. O'Neill, 774. 
V. Valentine, 712. 
Feeters v. Lamborn, 216. 
Feldman v. Beier, 304, 360, 391. 

V. Gamble, 92. 
Fellows V. Commissioners of Loans of 
Oneida County. 641 . 
V. Harrington, loi. 
V. Longyor, 642. 
V. Prentiss, 214. 
Fells V. Barbour, 29. 
Felton V. Brooks, 555. 

V. Smith, 60. 
Fenno v. Sayre, 478. 
Ferdon v. Miller, 608. 
Fergus v. Wilmarth, 557. 
Ferguson v. Crawford, 784, 834. 
V. Ferguson, 817. 
V. Hamilton, 324. 
V. Kimball, 897, 958, 1 104. 



Ferguson v. Smith, 781. 
V. Wagner, 400. 
V. Wooley, 1153. 
Ferrer v, Pyne, 859, 869. 
Ferris v. Crawford, 216, 273, 591, 722. 
V. Ferris, 228, 231. 
V. Hendrickson, 358. 
V. Houston, 24, 235. 
Fessler's Appeal, 194. 
Foster v. Townshend, 904. 
Fetes V. O'Laughlin, 97. 
Fiacre v. Chapman, 262. 
Fiedler v. Darrin, iS, 37, 632, 633, 649. 

664. 
Field V. Hawxhurst, 1065. 
Fielder v. Varner, 1 1 54. 
Fields V. Helms, 710. 
Finley v. Simpson, 567, 575. 
Firestone v. The State, 1053. 
First National Bank v. Essex, 369. 

V. Hayzlett, 290. 
First National Bank of Batavia v, "Tar- 
box, 109. 
First National Bank of Canandaigua v. 

Garlinghouse, 618. 
First National Bank of Corry v. Stiles, 

320. 
First Nat. Bank of Paterson v. Byard, 

196. 
First Nat. Bank of Waterloo v. El- 
more, 133. 
Fish V. Dodge, 565. 
V. French, 308. 
V. Hay ward, 204, 216. 
V. Howland, 60, 67. 
Fisher v. Beckwith, 89. 
V. Hepburn, 143. 
, V. Hersey, 980, 987, loio. 
V. Johnson, 448. 
Fisher's Ex'r v. Mossman, 495. 
Fisk V. Duncan, 860. 

V. Potter, 58, 67, 68, 288. 
Fiske V. Tolman, 571, 573. 
Fitch V. Cotheal, 338, 363, 610. 
V. Forman, 347. 
V. Remer, 644. 
V. Wetherbee, 17. 
Fitchburg Savings Bank v. Amazon 

Ins. Co., 533. 
Fithian v. Corwin, 298. 
Fitzsimmons v. Beam, 632. 
Flagg V. Mann, 34, 490, 492. 

V. Munger, 446, 595, 601. 
Fleischauer v. Doellner, 594. 
Fleischman v. Stern, 324, 649. 
Fleiss V. Buckley, 1043, 1050, 1062. 
Fleming v. Burnham, 1000, looi. 



XXX 



INDEX TO CASES CITED. 



He/erences are 
to Sectione. 



Fleming v. Gilbert, 204. 
Fletcher v. Carpenter, 304. 
v. Chase, 451. 
V. Holmes, 23, 712. 
V. Morey, 47. 
Flower v. Elwood, 293, 389. 
Floyer v. Livingston, 674. 
Flynn v. Powers, 135, 612, 857. 
Fogarty v. Sawyer, 24. 
Fogel V. Pirro, 235, 255, 673, 681, 694, 

698,711. 
Foley V. Rose, 294. 
FoUett V. Hall, 290. 
Foote V. Lathrop, 781. 
Ford V. Cobb, 167, 179. 
V. David, 589. 
■V. Olden, 30, 678. 
V. Stewart, 298, 300. 
V. Smith, 71. 
Foreman v. Foreman, 1062. 
Forman v. Marsh, 1064. 
Forstall v. Blanchard, 361. 
Fort v. Burch, 281, 312, 483, 484, 486, 

487; 4-97, 500, 1021. 
Foster v. Heals, 332, 334, 355. 

V. Beardsley Scythe Co., 474. 
V. Fouat, 291. 
V. Hughes, 686. 
V. Paine, 390. 
V. Powers, 68. 
V. Reynolds, 193. 
V. Townshend, 847, 904. 
V. Union Bank, 1027. 
V. Van Reed, 304, 544, 556, 560. 
Foster's Appeal, 108, 286. 
Fox, Adm'r, v. Fraser, 17. 

V. Lipe, 82, 235, 241, 1098. 
V. Parker, 213. 
V. Wray, 358, 438. 
Fouch V. Wilson, 60. 
Fougera v. Moissen, 883. 
Fowler v. Bush, 391. 
V. Fay, 363. 
V. Hoffman, 548. 
V. Johnson, 11 19. 
V. Merrill, 478. 
V. Scully, 132. 
Fowleyz/. Palmer, 548, 552. 
Francis v. Church, 971, 979, 986. 
Frank v. Wessels, 813. 
Frankland v. Moulton, 174, i8o. 
Franklin Bank v. Piatt, 340. 
Franklin v. Gorham, 680. 

V. Hayward, 364, 379, 836. 
Franklin Savings Ins. Co. v. Central 

Ins. Co., 538. 
Franklin v. Talmadge, 467. 



Franklin v. Van Cott, 1055, 1068, 1070, 

1072. 
Franklynt/. Hayward, (030, 1077, 1081. 
Fraser v. Prather, 255, 797. 
Frayser v. Trustees Indiana Asbury 

University, 206. 
Frecking v. Roland, 614. 
Freedman v. Gamble, 672. 
Freeligh v. Piatt, 128. 
Freeman v. Auld, 202, 571, 652, 879, 
880. 
V. Munns, 967. 
V. Peay, 90. 

V. Schroeder, 281, 1055. 
Freeson v, Bissell, 75. 
Frelinghuysen v. Colden, 751, 843, 885, 

888, 904, 1018, 103 1. 
French v. Baron, 258. 
V. Burns, 15. 
V. De Bow, 433. 
V. Kennedy, loi, 630. 
V. New, 793, 828. 
v. O'Brien, 482. 
V. Shoemaker, 741. 
V. Shotwell, 651. 
V. Stone, 433. 
Frickee v. Donner, 218. 
Friemansdorf v. Watertown Ins. Co., 

551- 
Frieze v. Chapin, 11 30. 
Frink v. Adams, 21. 

V. Hampden Ins. Co., 552. 

V. Le Roy, 235. 

V. Thompson, 1148. 
Frisbee v. Thayer, 25. 
Frisbie v. Lamed, 212, 376, 391. 
Frost V. Beekman, 292, 461, 472, 476, 

491. 494- 

V. Bevins, 680, 962. 

V. Frost, 280. 

V. Koon, 388, 792, 844, 1018, 1054. 

V. Myrick, 979. 

V. Peacock, 622, 1058. 

V. Yonkers Savings Bank, 297, 
363, 400, 406, 408, 409, 448, 
477, 685, 686, 687, 689. 
Fryatt v. The Sullivan Co., 179. 
Frye v. Bank of Illinois, 200. 
Fryer v. Rockefeller, 790, 1004, 1006. 
Fuhrman v. Loudon, 464. 
FuUam v. Stearns, 171, 178. 
Fuller V. Brown, Matter of, 969, 971. 

V. Hunt, 879. 

V. Schribner, 765. 

V. Van Geesen, 997, 1021. . 
Fulton V. Mathews, 206, 223. 
V. Whitney, 990. 



Beference9 are 
to Sections. 



INDEX TO CASES CITED. 



XXXI 



Fullerton v. McCurdy, 31, 38. 
Funk V. McReynolds, Adm., 293. 

V. Murphy, 681. 
Furbish v. Sears, 100. 
Furnas v. Durgin, 577. 
Furniss v. Ferguson, 333. 

Gabbert v. Schwartz, 308. 

Gaffney v. Hicks, 601. 

Gage V. Brewster, 692, 711, 730, 1027, 

1029. 
Gahn v. Niemcewicz, 212, 213, 215, 394, 

610. 
Galatain v. Erwin, 876, 877. 
Gallagher v. Egan, 796, 908, 912. 
Gallatain v. Cunningham, 790. 
Gallatin County v. Beattie, 23; 
Galpin v. Page, 1017. 
Galway v. Fullerton, 107. 
Gans V. St. Paul Ins. Co., 543. 
V. Thieme, 434, 445, 449. 
Gantt v. Gantt, 337. 
Gantz V. Toles, 1109. 
Garanflo ii. Cooley, 160. 
Garber v. Henry, 203. 
Gardiner v. Schermerhorn, 978, 983, 

985. 
Gardner v. Astor, 363. 

V. Brower, 735. 

V. Diederichs, 293. 

V. Emerson, 94. 

V. Finlay, 167. 

V. Heartt, 188, 189, 190. 

V. James, 443. 
Garlock v. Goertner, 416. 
Garnsey v. Rogers, 579, 583, 584, 585, 

587. 
Garr v. Bright, 908, 910. 
Garrett v. Lynch, 1017. 
V. Puckett, 494. 
Garson v. Green, 52, 60, 288. 
Garwood v. Admrs. of Eldridge, 449. 
Gaskill V. Wales, 449. 
Gaskin v. Anderson, 1005. 
V. Meek, 925, 941. 
Gates V. Bennett, in. 
Gate wood v. Gatewood, 445. 
Gault V. McGrath, 209. 
Gausen v. Tomlinson, 281, 460. 
Gaylord v. Cincinnati German Build- 
ing Ass'n, 458. 

V. Knapp, 14, 60, 102, 813. 
Genter v. Morrison, 86. 
George v. Andrews, 216. 

V. Arthur, 1 109, 11 10. 

V. Grant, 112, 114. 

V. Wood, 272, 681. 



Georgia R.R. Co. v. Walker, 1030. 

Gerber v. Sharp, 293. 

German Savings Bank v. Sharer, 919, 

1043, 1074- 
Gerrish v. Black, 247, 259. 
Gerry v. Post, 785, 797. 
Gerwig v. Shetterly, 670. 
Getting w. Mohr, 11 59. 
Gibbes v. Jenkins, 1 54. 
Gihbs, Matter of, 1074. 
Gibson v. Crahore, 683. 

V. McCormick, 386. 

V. Milne, 436. 

V, Renne, 206. 

V. Stearns, 633. 

V. Wilson, 100. 
Giddings v. Seward, 354. 
Gifford V. Allen, 213. 

V. McCloskey, 569. 
Gilbert v. Gilbert, 434, 449. 

V. Haire, 271. 

V. Holmes, 92. 

V. The North Am. Fire Ins. 
Co., 568. 
Gilchrist v. Couch, 482. 

V. Cough, 467, 476. 
Giles V. Baremore, 410. 
11. Comstock, 102 1. 
V. Lewis, 818. 
Giil V. Lyon, 271, 958. 

V. Pinney's Adm'r, 478. 
Gillespie v. Moon, 850. 
Gillett V. Balcom, 160, 790. 
Gillette v. Smith, 341, 390, 414, 1084. 
Gillig V. Maas, 113, 281, 302, 459, 498, 

502, 626. 
Gillis V. Martin, 253. 
Gilman v. Brown, 65, 71. 

V. Moody, 281. 

V. Telegraph Co., 896. 
Gimble v. Stottle, 149. 
Girard Trust Co. v. Stewart, 573. 
Girardin v. Lampe, 461. 
Given v. Kemp, 652. 
Glacius 2/. Fogel, 750, 831. 
Gleason v. Moen, 876. 
GUdden v. Hunt, 308, 499. 
Globe Ins. Co. v. Lansing, 827. 
Globe Marble Mills v. Quinn, 173, 174. 
Glover v. Payn, 31, 33. 
Glynn v. Building Ass'n, 17. 
Goddard v. Coe, 15. 

V. Sawyer, 195. 
Godfrey v. Watson, 258. 
Goelet V. McManus, 481. 
Goff i". Rogers, 95. 
Goldsmith ^z. Brown, 218, 221, 661, 829. 



xxxu 



INDEX TO CASES CITED. 



EeferiTitea are 
to Sections. 



Goldsmith v. Osborne, 699, 975. 
Gooch V. Vaughan, 11 30. 
Goodall, Case of, 8. 

V. Mopley, 721. 
Goodbar v. Dunn, 283. 
Goodell V. Harrington, 969, 987. 
Goodenow v. Curtis, 100. 
Goodhue v. Berrien, 813. 

V. Churchman, 819. 
Goodman v. Keney, 870. 
Goodrich V. Kimberly, 29. 
Goodwin v. Gilbert, 575. 

V. Keney, 366. 

V. Mass. Mut. Life Ins. Co., 

543- 
V. Simonson, 223, 995. 
Gorden v. Bell, 279. 

V. Manning, 68. 
Gordon v. Massachusetts F. and M. 
Ins. Co., 529. 
V. Saunders, 995. 
V. Ware Savings Bank, 557. 
Gorham v. Anderson, 462. 
Gorton z/. Paine, 29. 
Gould V. Bennett, 777. 
V. Gager, 981. 
■V. Holland Purchase Ins. Co., 

540. 
V. Horner, 664. 
V. Libby, 972, 981. 
V. Marsh, 301, 308, 310, 315. 
V. Mortimer, 966, 969. 
Goulding v. Bunster, 336. 
Gouverneur v. Elmendorf, 600, 859. 

V. Lynch, 271, 958. 
Gower v. Howes, 743. 
Grady v. Ward, 1003, 1004. 
Grafton Bank v. Doe, 341. 
Graham v. Bleakie, 995, 1004, 10x35. 
V. Dickinson, 444. 
•v. Linden, 398, 400, 624. 
V. Phoenix Ins. Co., 550. 
V. Stewart, 851. 
Grandin v. Hernandez, 692. 
Granger v. Crouch, 281, 293, 294, 460. 
Grant v. Bissett, 292. 

V. Duane, 444, 675, 702, 738. 
V. Griswold, 797. 
V. Spencer, 788. 
V. Tallman, 600, 859, 869, 873. 
Graser w. Stellwagen, in. 
Gratten v. Wiggins, 294, 681. 
Graves v. Blanchard, 908. 
V. Briggs, 485. 

V. Hampden Fire Ins. Co., 556. 
V. Rogers, 366. 
Gray v. Brignardello, 1017. 



Gray v. Van Blarcom, 642. 
Graydon v. Church, 718. 
Green v. Butler, 67b, 679. 

V. Deal, 281, 314, 460, 481. 
V. Dixon, 681, 753, 767. 
V. Fry, 310, 340, 398. 
V. Hart, 298, 300, 347. 
V. Kemp, 652. 
V. Lamb, 259. 
V. Milbank, 448. 
V. Morse, 652, 659. 
V. Slayter, 494. 
V. Supervisors, 459. 
Greenault v. Davis, 333, 862. 
Greene v. Tyler, 643. 

V. Warnick, 281, 297, 314, 498. 
Greenpoi.it Sugar Co. v. Kings County 

Mfg. Co., 117. 
Greenpoint Sugar Co. v. Whittin, 117, 

118, 119, 121, 122. 
Greer v. Higgins, 492. 
V. Turner, 245. 
Gregg V. Von Phul, 345. 

V. Wells, 345. 
Gregory v. Thomas, 212, 374, 391. 
V. Hartley, 577. 
V. Campbell, 81 5, 947, 953. 
Grerther v. Alexander, 879. 
Gressinger v. Dessenburgh, 91. 
Griffin v. Burtnett, 199. 

V. New Jersey Oil Co., 193, 633. 
Griffith V. Allen, 175. 

V. Griffith, 491, 766. 
V. Hadley, 976. 
7/. Merritt, 877. 
V. Robertson, 1089. 
Grimball v. Mastin, 847. 
Grimes v. Kimball, 813. 
Grimstone v. Carter, 458, 472, 487. 
Grinnan •z/. Piatt, 205, 206. 
Grissler v. Powers, 324. 
Griswold v. Fowler, 731, 742, 765, 954, 

955- 
V. Griswold, 342, 419. 
V. Miller, 755, 765. 
V. Onondaga County Savings 
Bank, 361. 
Grocer's Bank v. Neet, 321. 
Groff i". Morehouse, 238, 11 14, 1142. 
Gross V. Welwood, 242. 
Grosvenor v. Atlantic Fire Ins. Co. of 
Brooklyn, 533, 534, 552. 
V. Day, 855, 1087, 1 127. 
Grove v. Todd, 464. 
Grover v. Hall, 11 36. 

V. Thatcher, 365. 
Grow V Garlock, 839. 



Beferences are 
to Sections. 



INDEX TO CASES CITED. 



XX'Xlll 



Grugeon v. Gerrard, 717. 
Grussy v. Schneider, 231. 
Gubbings v. Harper, 16. 
Guckenheimer v. Angevine, 88. 
Guest V. The City of Brooklyn, 928, 

1 109. 
Guggenheimer v. Geiszler, 636. 
Guion V. Knapp, 220, 271, 381, 383, 384, 

388, 958. 
Gulden v. O'Bryne, 228. 
Gunn V. Barry, 433. 
Gunnell z/. Cockerill, 11 50. 
Guy V. Du Uprey, 445. 

HackenhuU v. Westbrook, 778. 
Hackney v. Vrooman, 45, 306. 
Haddon -v. Jones, 94. 
Hadley v. Chapin, 790. 

V. N. H. Ins. Co., 552. 
Hagan v. Walker, 741. 
Hagenbuch v. Phillips, 608. 
Hagerty v. Allaire Works, 206. 
Hkgthorp V. Hook, 255. 

V. Veale, 40. 
Hague V. Inhabitants of West Ho- 

boken, 955. 
Haight V. Continental Ins. Co., 540. 
Haile v. Nichols, 880. 
Haines v. Beach, 675, 682, 692, 730. 
V. Pahlman, 354. 
V. Taylor, 985. 
V. Thompson, 19. 
Haldade v. Sweet, 837. 
Hale V. Baker, 53. 

v. Clausen, 967, 987. 

V. Gouverneur, 232. 

V. Morgan, 432. 

V. Omaha Nat. Bank, 482. 

V. Patton, 231, 356. 

V. Rider, 10S4. 
Hall V. Bamber, 818, 944. 

V. Cashman, 454. 

V. Constant, 206. 

V. Crouse, 99, 193. 

V. Davis, 847. 

V. Edwards, 384. 

V. Erwin, 883. 

V. Hall, 712. ^ 

V. Jewell, 16; 

V. Nelson, 731, 740, 758, 764, yyj, 
852. ^ 

V. Smith, 1006. \ 

V. Van Cleve, 18. 

V. Westcott, 28. 
Hall's Ex'rs v. Lambert's Ex'rs, 97. 
Halliday v. Hart, 206. 
Hallinger v. Bates, 731. 



Hallock V. Smith, 58, 60, 66, 731. 
Halsey v. Martin, 304. 

V. Reid, 216, 273, 274, 571, 572, 
575. 577. 579. 59'. 722, 
960. 
Halstead v. Bank of Kentucky, 478. 

V. Board of Commrs. of take 
Co., 850. 
Hamell v. Gillespie, 596. 
Hamilton v. Austin, 160, 161. 
V. Fowlkes, 69. 
V. Gunther, 555. 
V. Jones, 261. 
V. Lubukee, 971. 
V. Van Rensselaer, 628. 
Hamlin v. McCahill, 823. 
Hampson v. Suydenham, 134, 
Hampton v. Nicholson, 431. 

V. Phipps, 455. 
Hancock v. Fleming, 567. 

V. Hancock, 467, 719, 741, 

823. 
V. Harper, 19, 22. 
Hancock's Appeal, 293, 294. 
Handley v. Munsell, 688, 877. 
Hannon v. Hilliard, 851. 
Hanover Fire Ins. Co. v. TomUnson, 

832. 
Hansard v. Hardy, 1083. 
Hansell v. Lutz, 446. 
Hanson, ex parte, 872. 
Harbeck v. Vanderbilt, 336, 444. 
Harbison v. Vaughan, 831. 
Hardin v. Hyde, 652. 
Hards v. Burton, 246, 274. 
Hardwick v. Mynd, 390. 
Hare v. Van Deusen, 62. 
Harlem Savings Bank v. Micklesburgh, 

829. 
Harman v. May, 33. 
Harmer z/. Priestly, 717. 
Harmon v. Hilliard, 790. 

V. Price, 505. 
Harmony Building Association v. Bur- 
ger, 171. 
Harp V. Calahan, 23. 
Harper v. Ely, 239, 259. 

V. Leal, 146. 
Harper's Appeal, 15, 194, 255, 682. 
Harrington z/. Fitchburgh Ins. Co., 551. 

V. Slade, 765. 
Harris v. Barmore, 189. 
V. Cook, 345, 420, 
V. Fly, 275, 806. 
V. Haynes, 178. 
V. Jex, 404, 406. 
V. Mulock, 356. 



XXXIV 



INDEX TO CASES CITED. 



Seferences are 
to Seouom. 



Harrison v. Bray, 870. 
V. Guerin, 279. 
V. Phillips Academy, 16. 
V. Simons, 785, 797. 
V. Trustees, etc., 678, 679. 
Harscig v. Brown, 355. 
Hart V. Chalker, 95, 203. 
V. Haydon, 847. 
V. Sheldon, 178. 
V. Ten Eyck, 22. 
V. Wandle, 238, 271, 274, 304, 
571, 711, 1024, 1027. 
Kartell, in the Matter of, 341. 
Hartford Fire Ins. Co. -v. Walsh, 540. 
Hartford and New York Transporta- 
tion Co. V. First Nat. Bank, 343. 
Hartley v. Harrison, 446, 571, 601, 652, 
655, 878. 
V. Tatham, 202, 311, 409, 880. 
Harwell v. Lehman, 743. 
Harwood v. Kirby, 78. 
Hasbrouck v. Shuster, 794. 
V. Tappen, 204. 
Hasford v. Johnson, 253. 
Haskell v. Burdette, 213, 215. 

V. The State, 274. 
Haskill 7'. Sevier, 90. 
Hassam v. Barrett, 18. 
Hasselman v. McKernan, 1028. 
Hastings v. Westchester Fire Ins. Co., 

544. 545- 
Hatch V. Mayor, etc., of New York, 
152. 
V. Morris, 445. 
Hatcher v. Chauncey, 818. 
Hatfield v. Reynolds, 354. 
Haughwout V. Garrison, 664. 
Hawke v. Snydaker, 381, 386. 
Hawkins v. Thurman, 60. 
Hawley v. Bradford, 6io, 620, 622, 627. 
V. Cramer, 489, 764. 
V. Foote, 212, 376. 
Haworth v. Taylor, 24. 
Hay V. Star Fire Ins. Co., 556, 560, 563. 
Hayden v. Bucklin, 755. 

V. Snow, 598. 
Hayes v. Dickinson, 765, 896, 898, 901. 
V. Fray, 728.. 
V. Harmony Grove Cemetery, 

1 001. 
V. Ward, 213, 279, 382, 444, 723. 
Haynes v. Stevens, 27. 
Hays V. Thomae, 785, 797. 
Haywood v. Jones, 664. 

V. Nooney, 286. 
V. Shaw, 491, 1055. 
Hay worth v. Worthington, 13. 



Hazleton v. Wakeman, 987. 

Headly v. Goundry, 419. 

Heath-w. Second National Bank, 133. 

V. Page, 98. 
Hebbard v. Haughian, 193, 565. 
Hedden v. Cowell, 436. 
Heermans v. Clarkson, 335, 349. 

V. Ellsworth, 334, 355, 358. 
Heeter v. Glasgow, 462. 
Heffron v. Flanigan, 287. 
Held v. Vreeland, 571. 
Heilbrun v. Hammond, 342, 464, 498. 
Heilman v. Westchester Fire Ins. Co., 

551- 
Heintze v. Bentley, 96, 200. 
Hekla Fire Ins. Co. v. Morrison, 843. 
Helck V. Reinheimer, 843. 
Hellreigel v. Manning, 1000. 
Helmer v. Krolick, 308. 
Hemans v. Lucy, 13. 
Hemtnenway v. Mulock, 87. 
Henderson v. Herrod, 301. 

z/.. Pilgrim, 344, 458. 
V. Truitt, 274. 
Hendrickson v. Wooley, 282. 
Hendrickson's Appeal, 460. 
Hendrix v. Gore, 193. 
Hening v. Punnett, 1017. 
Henley v. Hotaling, 31. 
Henn v. Coninsby, 354. 
Hennesy v. Farrell, 235. 
Henry v. Anderson, 105. 

V. Clark, 674. 

V. Davis, 9, 677, 717. 

'■V. Root, 134, 856. 
Henseler v. Nickum, 286. 
Hepburn v. Griswold, 404. 
Herkimer v. Rice, 529. 
Herrick v. Borst, 224. 
Herron v. Herron, 18, 608. 
Hess V. Final, 91. 
Hetfield v. Newton, 654, 664. 
Hetzell V. Barber, 334, 358, 401, 478. 
Hewes v. Wiswall, 492. 
Hewitt V. Rankin, 105, 108. 
Hewsen v. Deygert, 951, 
Heyer v. Deaves, 924. 

w. Pruyn, 341,413,414. 
Heyman v. Beringer, 354. 
Hiatt V. Renk, 790. 
Hibernia Sav. and Loan Soc. v. Conlin, 

809. 
Hickman v. Cantrell, 38. 
Hickock V. Scribner, 705. 
Hicks v. Bingham, 362. 

V. McGarry, 567. 

V. Marshall, 141. 



JSefereTices are 
to Sections- 



INDEX TO CASES CITED. 



XXXV 



Hidden v. Jordan, 248. 
Higgins V. Chamlserlain, 162, 191. 
High V. Batte, 71. 
Higinbotham v, Stoddard, loog. 
Hill 7^. Beebe, 212, 374, 376, 391. 
V. Butler, 859. 
V. Eldred, 45. 
V. Epley, 345. 
V. Grant, 31, 33, 40. 
V. Gwin, 184, 191. 
V. Hill, 2g. 

V. Howell, 381, 388,628. 
V. Linn, 18. 
V. McReynolds, 805. 
V. Minor, 879, 11 19. 
V. McNichol, 476. 
V. Wentworth, 178. 
Hill's Administrator v. McCarter, 274. 
Hillhouse v. Dunning, 14. 
Hilliard v. Allen, 252. 
Hills w. Loomis, 18, 21. 
Hilton V. Catherwood, 341. 
Himmelmanz/. Fitzpatrick, 396. 
Hincliffe v. Shea, 626. 
Hinchman v. Stiles, 296. 
Hines v. Langley, 60. 
Hinsdale v. Humphrey, 575. 
Hirsch v. Livingston, 731, 767, 997. 

V. Trainer, 141, 324, 329. 
Hiscock V. Phelps, 27, 104, 1*5. 
Hitchcock V. Fortier, 251. 

V. Hari-ington, 23, 620, 624. 
V. The Northwestern Ins. 

Co., 284, 856. 
v.\J. S. Bank of Penn., 1075. 
Hitesman v. Donnel, 87. 
Hobartt/. Hobart, 941. 
Hodges V. The Tennessee Marine and 

Fire Insurance Co., 18, 529, 540. 
Hodgson V. Heidman, 750. 
V. Shaw, 444. 
V. Treat, 767. 
Hoeffler v. Westcott, 331, 333, 660. 
Hoey V. Kinney, 1062. 
HoiSnan v. Burke, 929, 956. 

V. Mackall, 17. 
Hogan V. Hoyt, 826. 
V. Stone, 247. 
Hoile V. Bailey, 13. 
Holbrook v. Am. Ins. Co., 555. 

V. The Receivers of the 
American Fire Ins. Co., 
872. 
Holcomb V. Holcomb, 741, 751, 823, 

843, 1018. 
Holden v. Garrett, 290. 

v. Gilbert, 230, 870, 874. 



Holden v. Risan & Co., 675, 879. 

V. Sackett, 1017, 1027. 

V. Trust Co., 628. 
Holbridge v. Gillespie, 30, 154, 674, 

677. 678. 
Holland v. Baker, 738. 

V. Hodgson, 191. 

V. Johnson, 214. 
Hollenbeck v. Donell, 161, 886, 8go, 
896. 
V. Shoyer, 431, 434. 
Holm V. Taylor, 778. 
Holmes v. Boyd, 133. 

V. French, 300. 

V. Grant, 18, 33, 36, 37. 

V. Holmes, 403, 625. 

V. Powell, 492. 

V. Remsen, 351. 

V. Williams, 645. 
Holt V. Baker, 418. 

V. Creamer, 96. 
Holton V. Bowman, 238. 
Home Ins. Co. v. Dunham, 634. 
V. Head, 991. 
V. Smith, 150. 
Homeopathic Mut. Life Ins. Co. v. 

Marshall, 462. 
Homeopathic Mut. Life Ins. Co. v. 

Sixbury, 937, 1065. 
Hone V. Fisher, 14, 102, 303, 375, 824. 
Honore v. Hutchings, 38. 

■V. Lamar Fire Ins. Co., 562. 
Hoodless V. Reid, 230. 
Hook z/. Creamer, 192. 
Hooker v. Martin,'i49, 150. 

V. Pierce, 478. 
Hooper, ex f arte, 440. 
Hoopes V. Auburn Water Works Co., 

1016. 
Hope Fire Ins. Co. ■v. Cambrelling, 491. 
Hope V. Liddell, 494. 
Hopkins v. Adams, 813. 

V. Garrard, 69. 

V. Stephenson, 256. 

V. WoUey, 274. 
Hopkinson v. Rolt, 200. 
Hoppock V. Conklin, 983. 
Hopson V. MXxA Axle and Spring Co., 

718. 
Horn V. Cole, 345. 

V. Keteltas, 18, 33, 34, 38. 
Hornby v. Cramer, 690, nil, 1122. 
Horst V. Dague, ^^. 
Horstman v. Gerker, 310. 
Horton v. McCoy, 1062, 1064. 
Hosford V. Nichols, ^(>, 7$^, 1088. 
Hoskins v. Carter, 484. 



XXXVl 



INDEX TO CASES CITED. 



References are 
to Sections. 



Hoskins v. Wall, 52. 

Hosmer v. Campbell, 958. 

Hotchkiss V. Clifton Air Cure, 975, 

996. 
Hottenstein v. Lerch, 492. 
Houbie v. Volkening, 231, 356. 
Hough v. Barton, 813. 

V. Osborne, 293. 
Hourtunne v. Schnoor, 462. 
House V. Eisenlord, 909. 
V. House, 267, 624. 
V. Lockwood, 1079. 
Houston V. Houston, 285. 
Hovenden v. Knott, 877. 
Hovey v. Hill, 768. 
How w. Vigiyes, 8. 
Howard v. Chase, 494. 
V. Farley, 230. 
V. Gresham, 308. 
V. Harris, 674. 
■V. Hatch, 1 109, 1 148. 
Howard Ins. Co. v. Halsey, 220, 381, 

383, 384, 489, 490, 494. 
Howard Nat. Bank v. Toomes, 132. 
Howe, Matter of, 46, 66, 288. 
Howe's Ex'rs v. Towner, 79. 
Howell V. Leavitt, 242. 

V. Mills, 968, 973, 984, 987. 
V. Ripley, 885, 896, 898. 
V. Western R.R. Co., 229. 
Howery v. Helms, 980, 989. 
Howland v. Blake, 19, 462. 
Hoxie V. Carr, 105. 
Hoy 1/. Bramhall, 274, 336, 338. 
Hoyle V. Plattsburg & Montreal R.R. 

Co., 158. 
Hoyt V. Doughty, 47. 
V. Hoyt, 498. 
V. Martense, 76, 718, 743, 745, 

. 1022. 
V. Savings Institution, 971. 
Hubbard v. Cummings, 856. 
V. Ensign, 573. 
V. Gurney, 212, 214. 
V. Norton, 27. 
V. Ogden, 215. 
V. Savage, 192, 199, 203. 
V. Shaw, 257. 
V. Stetson, 18. 
Hubbell v. Blakeslee, 93, 99, 197, 208, 
336, 439, 441. 
V. East Cambridge Savings 

Bank, 171, 178. 
v. Moulson, 24, 235, 700, 1098. 
V. Sibley, 693, 694, 1121, 1135. 
Huber v. Disbold, 285. 
Hudson V. Kelly, 707, 717. 



Huebsch v. Scheel, 273. 
Hufmann v. Hulburt, 213, 224. 
Hughes V. Edwards, 413. 

V. Johnson, 93, 94, 208, 298. 
V. Kearney, 66. 
V. Schraff, 38. 
Hulbert v. McKay, 1068, 107 1. 
Hulett V. Whipple, 58, 70, 288. 
Hummel v. Brown, 98. 
Humphreys v. Danser, 208. 
V, Martin, 293. 
V. Thorn, 60. 
Hunt V. Amidon, 600. 

V. Bay State Co., 174. 
V. Chapman, 870, 917. 
V. Harding, 818. 
V. Hunt, 365, 487. 
V. Johnson, 50, 113, 458. 
V. Keech, 228, 230. 
V. Makemson, 692. 
V. Middlebrook, 916. 
V. Purdy, 222. 
■V. Wallis, 819. 
Huntingdon,' Case of, 610. 
Hunter v. Le Conte, 398. 
Hurmden v. Roberts, 243. 
Huston V. Neil, 108. 
Hiisted V. Dakin, 1045, 1046, 1047. 
Hutchins v. Hebbard, 99, 328, 649. 
V. Hutchins, 20. 
V. King, 188. 
Hutchins' Adm'r v. Clark, 354. 
Hutchinson v. Abbott, 647. 

V. Swartsweller, 391, 433. 
Huxford V. Eslow, 426. 
Hyde v. Tanner, 145, 449, 
Hyland v. Stafford, 1129, 11 30. 

IdMfftgs V. Bruen, 903. 

Ijames v. Gaither, 455, 476. 

Illinois Fire Ins. Co. v. Stanton, 551. 

Ingall V. Fay, 181. 

Ingalls V. Morgan, 277, 279, 384, 444. 

493. 957- 
iHgCTSoU V. Mangarn, 782, 998. 
Ingraham tj. Disborough, 310. 
Innes v. Purcell, 941. 
Insurance Co. v. Brown, .194. 

V. Marshall, 449. 

V. Norton, 543. 

V. O'Donnell, 215. 

V. Stinson, 531. 

V. White, 13, 18. 
International Bank v. Bowen, 441, 
Irving V. De Kay, 84. 
Irwin V. Bidwell, 107. 
Isenhart v. Brown, 113, 



SefereTices are 
to Sections. 



INDEX »t> CASES CITED. 



XXX\ai 



Isett V. Lucas, 293. 
Ives V. Stone, 472. 

Jack V. Nichols, 645. 
Jackman v. Beck, 78. 
Jackson v. Allen, 234. 

V. Austin, 284, 286, 856. 

V. Blodgett, 298, 342. 

V. Bowen, 238, 692, 1081, 1 137, 
1 142. 

V. Bradford, 882. 

V. Bronson, 298. 

V. Burchin, 857. 

V. Burgott, 39. 

V. Cadwell, 489. 

V. Carpenter, 857. 

V. Chamberlain, 478. 

V. Colden, 487, 1 149. 

V. Corliss, 157. 

V. Crafts, 398, 1 1 29. 

V. Davis, 494. 

V. De Witt, 621, 625. 

V. Dominick, 669, 1129. 

V. Dubois, 24, 290, 1097. 

V. Edwards, 622, 623, 971,998, 

lOIO. 

V, Gardner, 79. 

V. Given, 491. 

V. Gumaer, 464. 

V. Henry, 312, 645, 669, 1 1 00, 

1 129, 1 140. 
V. Hill, 72. 
V. Lawrence, 18. 
V. Littell, 27. 
V. Losee, 755, 857. 
V. McChesney, 484, 491. 
V. Malin, 88. 
V. Morse, 11 29. 
V. Phillips, 39. 
V. Perkins, 461, 462, 568. 
V. Phipps, 568. 
V. Post, 281, 478, 481, 487. 
V. Pratt, 412. 
V. Reid, 484, 499. 
V. Reon, 803. 
V. Rhoades, 520. 
V. Richards, 39, 459, 474, 

568. 
V. Rumsey, 461. 
V. Sackett, 414. 
V. Sheldon, 234. 
V. Schoonmaker, 461, 462. 
V. Slater, 415, 696. 
V. Stackhouse, 342, 419. 
V. Stafford, 1097. 
V. Turner, 1 104. 
V. Tuttle, 647. 



Jackson v. Van Valkenburgh, 312, 472, 
487, 500. 
V. Voorhis, 519. 
V. Willard, 23, 26, 302. 
V. West, 39, 487. 
Jacobs V. Denison, 478. 
Jacobson v. Dodd, 321. 
Jaffrey v. Hursh, 81. 
Jagger Iron Co. v. Walker, 391. 
James v. Brown, 384. 

V. Hubbard, 271, 279, 280, 958, 

965, 1056. 
V. Johnson, 18, 25, 197, 334, 364, 

440, 472. 
V. Morey, 25, 42, 310, 364, 366, 

439, 496, 649. 
V. Oakley, 652. 
V. StuU, 1 102. 
V. Worchester, 188. . 
Janinski v. Heidelberg, 781. 
Jarmen v. Wiswall, 749. 
Jarnegan v. Gaines, 210. 
Jarvis v. Rogers, 197, 440. 
Jay V. Ensign, 912. 
Jencks v. Alexander, 630, 951, 11 19, 

1121, 1125, 1127. 
Jenkins v. The Continental Ins.Co.,685, 
687, 689. 
V. Freyer, 271, 958. 
V. Hinman, 887. 
V. Quincy IMut. Fire Ins. Co., 
529. 
Jenkinson v. Ewing, 1084. 
Jenness v. Cutler, 610. 
Jensen v. Weinlander, 929. 
Jerome v. McCarter, 741. 
Jerry v. Rosell, 279. 
V. Woods, 300. 
Jester v. Sterling, 206, 216. 
Jewell V. Harrington, 202, 880, 882. 
Jewett V. Miller, 328. 
Jewitt V. Davis, 339. 

V. Hamlin, 1084. 
John and Cherry Streets, in re, 673. 
Johnson v. Anderson, 197, 361, 439, 
440. 
V. Brown, 294, 301. 
V. Buckhaults, 818. 
"v. Bush, 639, 883. 
V. Candage, 301, 680. 
V. Corbett, 22, 57, 268, 277. 
V. Gere, 863. 
V. Harmon, 1027. 
V. Hart, 743. 
V. Johnson, 298, 300. 
V. Moore, 88. 
V. Parmely, 337, 445, 880. 



xxxnii 



INDEX TO CASES CITED. 



References are 
to Sections. 



Johnson v. Payne, 261, 448. 

■V. Sandhoff, 235, 238. 
V. Shepard, 829. 
V. Sherman, 155. 
v. Stagg, 458. 
V. White, 183, 186. 
V. Zink, 216, 363, 685, 686, 688, 
722. 
Johnson's Appeal, 361. 
Johnston v. Gray, 674. 
V. Riddle, 896. 
V. Wallace, 462. 
Jonas V. Jonas, 847. 
Jones V. Brogan, 94, 443. 
V. Caswell, 993. 
V. Clark, 242, 1026. 
V. Conde, 827. 
V. Detroit Car Co., 174. 
V. Fletcher, 256. 
V. Franks, 30. 
V. Guaranty & Indemnity Co., 

123, 192. 
V. Insurance Co., 878. 
V. Laphara, 76. 
V. Mack, 1027. 
V. Matthie, 1131. 
V. Merchants' Bank of Albany, 

414. 
V. Merritt, 616. 
V. Parsons, 105. 
V. Phelps, 281, 460, 910, 913. 
V. Quinnipack Bank, 300. 
V. Robinson, 482. 
■V. Smith, 492. 
V. Stienbergh, 661, 829. 
V. St. John, 751, 843, 1018. 
V. Trusdell, 219, 668. 
v. Witter, 767. 
Jones' Ex'r v. State Banking Co., 20i. 
Jordan v. Cheney, 301. 
V. Furlong, 441. 
V. Poillon, looi, 1002. 
V. Smith, 1084. 
Joslyn V. Wyman, 442. 
Judd t/. O'Brien, 1116, 11 18, 11 19. 
V. Seaver, 671. 
V. Seekins, 364. 
Judge V. Reese, 33. 
Judson V. Dada, 276, 459, 595, 601. 
Jumel V. Jumel, 216, 273, 341, 591. 

Kamena ^z. Huelbig, 317. 
Kane v. Cortesy, 213. 
Kaufman v. Walker, 929. 
Kay V. Whittaker, 730, 740, 877, 
Kearney v. Macomb, 37. 
V. Post, 1014. 



Kearsley v. Cole, 217. 
Keating v. Price, 204. 
Keegan v. Cox, 1 34. 
Keeler v. Davis, 328. 

V. Keeler, 156, 1034. 
Keller v. Ashford, 568. 

V. Orr, 610. 
Kelley v. Whitney, 308. 
Kellog V. Smith, 26. 
Kellogg V. Adams, 639, 640. 

V. Ames, 336, 366, 443, 592. 
V. Howell, 969, 972, 973, 983. 
V. Olmstead, 206. 
V. Rand, 271, 958, 961. 
V. Smith, 305, 316, 501. 
Kelly V. Austin, 173. 
V. Geer, 569. 
V. Israel, 931. 
V. Roberts, 602. 
V. Ruble, 52. 
V. Scott, 324. 
V. Searing, 802, 807, 808. 
Kelsey v. Bradbury, 380. 

V. Lyon, 177. 
Kelso V. Fleming, 593. 
Kemble v. Wallis, 397. 
Kendall v. Niebuhr, 383, 384, 386, 387, 

493- 
V. Treadwell, 1077, 1083. 
V. Woodruff, 385, 386, 387. 
Kenicott v. Supervisors, 308, 310. 
Kennedy v. Greene, 490. 
Kennelly v. Kelly, 275. 
Kent V. Agard, 18. 

V. Lasley, 19. 

V. Walton, 639, 645. 
Kenton v. Vandergrift, 423. 
Kenyon v. Segar, 879. 
Keogh V. McManus, 898. 
Kepley v. Jansen, 731, 818. 
Keppler v. Merkle, 941. 
Kerngood v. Davis, 52. 
Kemochen v. N. Y. Bowery Fire Ins. 

Co., 530, 563. 
Kerr v. Hill, 160. 

V. Kingsbury, 174. 

V. Russell, 462. 
Kerrigan v. Force, 926. 
Kershaw v. Thompson, 1 03 1. 
Kerwin, ex parte, 87. 
Kessler v. The State ex rel. Wilson, 

470. 
Ketcham v. Wood, 201, 466. 
Ketchem v. Jauncey, 194, 200. 
Ketchum v. Johnson, 38. 

V. Shaw, 625: 
Ketzmiller v. Van Rensselaer, 626. • 



Beferencea are 
to Sections. 



INDEX TO OASES CITED. 



XXXIX 



Keyes v. Wood, 300, 301. 

Kidd V. Conway, 611. 

Kierstead v. Avery, 291. 

Kiersted v. O. & A. R.R. Co., 570. 

Kies V. Tifft, 227. 

Kieser v. Baldwin, 208. 

Kiff z/. Weaver, 298. 

Kilborn v. Robbins, 272, 274, 363. 

Kilmer v. Smith, 598. 

Kilner v. O'Brien, 645. 

Kimball v. Myers, 99. 

Kindberg v. Freeman, 767. 

King t/. Baldwin, 213, 218, 221, 723. 

V. Ballantine, 625. 

V. Bardeau, 1006, 1007, 1009. 

■V. Duntz, 717, 920, iioi, 1113. 

V. Harrington, 304. 

V. Knapp, 1007. 

V. McVickar, 279, 367, 675, 876. 

V. Merchant's Ex. Co., 100, 114. 

V. Morris, 981. 

V. Newman, 38. 

V. Piatt, 939, 964, 978, 979, 987. 

V. Smith, 181. 

V. St. Michaels, 11. 

V. State M. F. Ins. Co., 243, 562. 

V. Warrington, 18. 

V. West, 1045, 1046, 1047. 

V. Whitely, 575, 580, 581, 589. 

V. Wilcomb, 160, 164, 175. 
Kingsland v. Chetwood, 85, 105 1. 
Kinnear v. Lowell, 577. 
Kinsey w. Bailey, 178. 
Kinsley v. Davis, 435. 
V. Scott, 843. 
Kinstrey 7/. Curtis, 688. 
Kipp V. Brandt, 733, 767. 

V. Delamater, 788. 
Kirby v. Fitzgerald, 1 1 54. 
Kirchner z/. Schalk, 191. 
Kirkham v. Dupont, 681, 753. 
Kirkpatrick v. Caldwell's Adm'r, 485. 

V. Ward, 487. 
Kirkwood v. Thompson, 243. 
Kirton v. Braithwaith, 231. 
Kistner v. Sindlinger, 105. 
Kitchell z: Mudgett, 449, 494, 626. 
Kitchen v. Lee, 134, 856. 
Kittle V. Van Dyck, 286, 621, 743, 852. 
Klapworth v. Dressier, 576. 
Klein v. McNamara, 33, 36, 37. 
Klinck V. Price, 15. 
Kline v. McGuckin, 23, 194. 
Klock V. Cronkite, 367, 378, 11 19, 

1121. 
Knapp V. Burnham, 785, 807, 816. 
V, Lee, 600, 861. 



Knapp v. Maltby, 87. 
V. Smith, 613. 
Knarr v. Conaway, 183. 
Kneeland v. Moore, 363. 
Kneettle v. Newcomb, 146, 328, 649. 
Knickerbacker v. Eggleston, 822, 921, 

963- 

Knickerbocker v. Boutwell, 273. 

Knickerbocker Life Ins. Co. v. Hill, 647. 

Knickerbocker Life Ins. Co. v. Nelson, 
632, 654, 656, 776, 878, 881. 

Knight I/. Drane, 11 30. 

V. Moloney, 995, 1004. 
V. Ray, 294. 

Knoblock z>. Zochwetzke, 592. 

Knoles v. Barnhart, 338, 569. 

Knox V. Lee, 404. 

Koester v. Burke, 293. 

Kohler ^/. Kohler, loii. 

Kornegay t/. Spicer, 11 30. 

Kortright v. Cady, 23. 24, 236, 261, 396, 
398, 406, 409, 691. 
V. Smith, 740, 743, 853. 

Kountze v. Hotel Co., 896. 

Kraft?/. James, 1027. 

Kramer v. The Trustees of the Farm- 
er's Bank, 194, 200. 

Kuhrs V. McGeah, 212. 

Laclede Bank v. Keeler, 1137. 
Lacustrine Fer. Co. v. L. G. & Fer. Co., 

484, 491. 
Ladue v. Detroit, etc., R.R. Co., 200, 

201, 202. 
Lady Superior v. McNamara, 90, 719. 
Lafarge v. Herter, 218, 662. 
La Farge Ins. Co. v. Bell, 27 1 , 958. 
La Farge v. Van Wagenen, 938, 977. 
Laflin v. Griffiths, 170, 176, 188. 
Laing v. Martin, 671. 

V. Titus, 798. 
Laing's Ex'rs v. Byrne, 601, 604. 
Lamb v. Cannon, 285. 

V. Jeffrey, 085. 

V. Montague, 680. 
Lambert v. Leland, 433. 
Lambertson v. Van Voorhis, 58, 66. 
Lamoille County National Bank v. 

Bingham, 650. 
Lamont v. Cheshire, 765, 767. 
L'Amoreaux v. Visscher, 324, 649. 
L'Amoureux v. Vandenburgh, 310. 
Lampman, Matter of, 139. 
Lamport v. Beeman, 57, 72, 268. 
Lancaster v. Smith, 420. 
Lance's Appeal, 17. 
Land £0. v. Peck, 60, 448, 738. 



xl 



IWDES TO CASBS CITED. 



Eeferences are 
to SeeUons. 



Land v. Wilcox, 60. 
Lane v. Conger, 955. 

V. Hitchcock, 188, 190. 
V. King, 160, 165. 
V. Ludlow, 64, 66, 288. 
V. Nickerson, 295, 297. 
•v. Shears, 15. 
Langdon v. Buel, 298, 300, 342. 

V. Gray, 671. 
Langford v. Barnard, 8. 
Lang] in v. Braley, 76. 
Lang's Heirs v. Waring, 105. 
Lanier v. Smith, 843. 
Lansdowne v. Ederton, 995. 
Lansing v. Capron, 837, 943. 
V. Goelet, 1076. 
V. McPherson, 983. 
V. Woodworth, 192, 200. 
Lants V. Crispe, 658. 
Lantz V. Buckingham, 147. 
Lapping v. Duffy, '836. 
Large v. Van Doren, 443. 
Larkin v. Misland, 1057. 
Lash V. McCormick, 11 37. 
Lashbrooks v. Hatheway, 196. 
Latham v. McCann, 869. 

V. Udell, 91. 
Lathrop v. Godfrey, 869, 871, 873, 883. 

V. Heacock, 781. 
Lattimore v. Harson, 204. 
Laverty v. Moore, 1015. 
Law V. McDonald, 908, 910. 
Lawrence v. Brown, 328, 649. 
V. Clark, 482. 

V. Cornell, 934, 1004, 1056. 
V. Delano, 1013. 
V. Farley, 568. 
V. The Farmer's Loan and 

Trust Co., 9, 15, iioi. 
V. Fox, 582. " 
V. Knap, 298. 
V. Lawrence, 719, 725. 
V. Towle, 567. 
V. Tucker, 193, 196. 
Lawson v. Barron, 234. 
V. Moffatt, 18. 
Lawton v. Sager, 919, 1074. 
Laylin v. Knox, 451. 
Layman v. Whiting, 1148. 
Leahy ■z/. Arthur, 892. 
Learned v. Geer, 1125. 
Leary v. Hoggs, 104. 

V. Schaffer, 625. 
Leavenworth v. Cooney, 624. 
V. Packer, 876. 
Leavitt v. Cruger, 781. 

V. Tyler, 764. , 



Ledyard v. Butler, 25, 201, 481. 
Lee V. Chadsey, 642. 

V. Methodist Episcopal Church of 

Fort Edward, 129. 
V. Parker, 751, 834, 843, 1018. 
V. Porter, 858, 869. 
V. West Jersey Land Co., 207. 
Leeds v. Cameron, 192. 
Leet V. McMaster, 11 16, 1135. 
Lefebere v. Detroit, 849. 
Lefevre v. Laraway, 973, 984, 989. 
Leggett V. McCarty, 859. 

V. McClelland, 454. 
V. Mutual Life Ins. Co., 736. 
Leighton v. Orr, 848. 
Leitch V, Wells, 760. 
Leitzbach v. Jackman, 448. 
Le Neve v. Le Neve, 478, 492. 
Lenihan v. Haraann, 732, 1006. 
Lenox v. Reed, 17. 
Lents V. Craig, 933. 
Leonard v. Morris, 749, 750, 829, 831. 
Leows V. De Forest, 194. 
Lesley v. Johnson, 324, 637, 671. 
Leslie v. Merrick, 848, 851. 
Lessee of Cooper v. Galbraith, 478. 

Heister v. Fortner, 472. 
Lester v. Barron, 202, 880. 
Levy V. Mayor, etc., of New York, 190. 

V. Merrill, 416, 425. 
Lewis V. Anderson, 105, 482. 
V. De Forest, 200. 
V. Kirk, 308, 309. 
V. Montgomery Mut. B. and L. 

Asso'n, 567. 
V. Palmer, 444. 
V. Payn, 88. 
■V. Small, 16. 

V. Smith, 751, 834, 843, 844, 
1018, 1054. 
Libby v. Hopkins, 360. 
Lidderdale's Ex'rs v. Robinson, 447. 
Lieby v. Wolf, 478. 
Life Ins. Co. v. Howell, 831. 
V. Rowand, 478. 
V. Slee, 13. 
Ligtner v. Mooney, 478. 
Lilly V. Dunn, Adm'r, 23. 
V. Palmer, 274, 363. 
Lim. Bank v. Mallett, 213. , 

Lindsay v. Bates, 58, 300. 
Linthicum v. Tapscott, 53. 
Lippold V. Held, 391. 
Lithauer v. Royle, 910. 
Littauer v. Goldman, 333. 
Littell V. Zoutz, 972, 973. 
Little V. White, 637. 



Ee/eretices are 
to Sections, 



INDEX TO CASES CITED. 



xli 



Littlefield v. Crocker, 626, 
Littlewort v. Davis, 16. 
Livingston z*. Byrne, 985. 

V. Dean, 310, 312, 649. 

V. Harris, 666, 667, 709. 

V. Mclnlay, 192. 

V. Mildrum, 835, 948, 949, 
1044, 1050. 

V. Newkirk, 57, 72, 268. 

V. Rendall, 797. 
Lloyd V. Mason, 904. 
V. Quinby, 836. 
Loan Ass'n v. Beggham, 381, 388. 

V. Hawlc, 278. 
Loan and Trust Co. v. Munson, 230. 
Lock V. Fulford, 271. 
Locke V. Horner, 575, 577. 
Lockman v. Ellis, 917. 

V. Reilly, 737, looi. 
Lockwood V. Fawcett, 831, 1088. 

V. Fox, 941. 

V. McGuire, 971. 

V. Sturdevant, 365. 

V. Marsh, 434, 449. 
Loeb V. Willis, 830, 1088. 
Loehr v. Colborn, 455, 737. 
Lofsky V. Maujer, 885, 890, 896, 898. 
Logan V. Smith, 308, 566. 
Logue's Appeal, 13. 
Lot V. Thomas, 27. 
Lomax v. Bird, 444. 
Lombard v. Dows, 96, 192. 
London and Westminster Loan and 

Discount Co. v. Drake, 174. 
Long V. Long, 809. 

V. Lyons, 816, 946. 
Longan v. Carpenter, 315. 
Longfellow v. Moore, 363. 
Loomer v. Wheelwright, 135, 275,610, 

857. 
Loomis V. Balheimer, 222. 
V. Bedell, 862. 
V. Eaton, 878. 
V. Loomis, 13. 
Looney v. Quill, 271. 
Lord V. Lane, 364, 
V. Morris, 411. 
•V. Vane, 365. 
V. Wilcox, 60, 71. 
V. The Yonkers Fuel Gas Co., 
114, 117, 118, 123. 
Loring v. Manufacturers' Ins. Co., 535. 
Lossee v. Ellis, 776, 908. 
Losey v. Bond, 134, 879. 

V. Simpson, 478, 479. 
Lathrop's Case, 731. 
Loucks V. Van Allen, 1043. 



Loudon V. Waddle, 562. 
Love V. Blair, 15. 
Lovejoy v. Bowers, 105. 

V. Vose, 445. 
Loveland v. Shepard, 227. 
Lovett V. German Reformed Church, 

791, 1026, 1036. 
Low V. Allen, 413. 

V. Purdy, 990, noi, 11 12. 
Lowenstein v. Phelan, 228, 229. 
Lowery v. Peterson, 58. 
Lowman v. Yates, 206. 
Lowndes v. Chisholm, 259. 
Lowry v. Smith, 476, 626. 

V. Tew, 675. 
Lucas V. Hendrix, 847. 
Luce V. Hinds, 829. 
Luckey z/. Gannon, 552. 
Lucking v. Wesson, 448. 
Ludington v. Slauson, 869, 873. 

V. Taft, 908. 
Ludlow V. Cooper, 105. 
Lycoming Ins. Co. v. Jackson, 11 29. 
Lyle V. Ducomb, 192. 
Lyman v. Little, 451. 

V. Lyman, 271, 387. 

V. Sale, 943, 944. 
Lynch, Matter of, 143. 

V. Cunningham, 233. 

V. Hancock, 451. 

V. Livingston, 463. 

V. Meyers, 941. 

V. Utica Ins. Co., 46, 47. 
Lynde v. Budd, 134, 856. 

V. McGregor, 96. 

V. O'Donnell, 785, 797, 1033. 
Lyon V. Lyon, 137, 785. 
V. Powell, 18, 844. 
V, Robbins, 680, 683. 

McArthur v. Schenck, 637. 
McAusland v. Pundt, 1017. 
McBride v. The Farmers' Bank of Sa- 
lem, 727. 

V. Lewisohn, 949. 
McBurney z/. Wellman, 13, 18, 1097. 
McCabe v. Bellows, 620. 

V. Farnsworth, 346. 

V. Swap, 338, 363. 
McCarthy v. Graham, 827. 

V. Peake, 895. 
McCauley v. Grimes, 286. 
McClelland v. Bishop, 229. 
McCoUough V. Colby, 794. 
McConneaughey z/. Bogardus, 1128. 
McConnell v. Blood, 171, 178. 
McCormick v. Knef, 1027. 



xlii 



INDEX TO CASES CITED. 



Seferences are 
io SecttoThS 



McCotter v. Jay, 966, 985. 
McCoy V. O'Donnell, 830. 
McCrackan v. Valentine's Executors, 

812. 
McCraney v. Alden, 645. 
McCrea v. Purmont, 193. 
McCrossen v. Harris, 261. 
McCuUom v. Turpie, Adm'r, 958. 
McCumber v. Gilman, 253. 
McCurdy v. Clark, 293. 
McDaniels v. Colvin, 194, 196, 201. 

V. FlowerBrookManuf. Co., 
449. 
McDermott v. Hennessy, 919, 1074. 
McDole V. Purdy, 60. 
McDonald & Co. v. Kellogg, 17. 
McDonald v. Mallory, 917. 

■V. Mobile Life Ins. Co., 

879- 
McDougal V. Downey, 818. 
McDougald v. Capron, 444. 
McFillan v. Hoffman, 610. 
McGan v. Marshall, 857. 
McGiven v. Wheelock, 364, 378, 443. 
McGovern v. Life Ins. Co., 11 25. 
McGown V. Sandford, 939. 
V. Wilkiiis, 997. 
V. Yerks, 734, 852. 
McGowan v. Branch Bank at Mobile, 
787. 
V. Newman, 810. 
V. People's Fire Ins. Co., 

540. 
V. Smith, 286, 621. 
McGregor v. McGregor, 725. 
McGuire v. Van Pelt, 208. 
McHany v. Schenk, 971. 
McHugh V. Smiley, 23. 
Mcllvain v. Assurance Co., 383. 

V. Kadel, 605, 607. 
Mclntyre v. Humphreys, 18. 

V. Plaisted, 562. 
McKay v. Green, 52, 72. 

V. Wakefield, 850. 
McKeague v. Hanover Fire Ins. Co., 

171, 172. 
McKechnie v. Steriing, 532. 
McKernan v. Robinson, 1092, 1094. 
McKillip V. McKillip, 62. 
McKinney v. Miller, 36, 271. 
McKinster v. Babcock, 95, 193, 195. 
McKinstrey v, Merwin, 292, 364, 365, 

1083. 
McKinstry v. Curtis, 273. 
McKinzie v. Perrill, 106. 
McKnight v. Clark, 346. 
V. Gordon, 478. 



McLane v. Geer, 874. 

McLaren v. Hartford Fire Ins. Co., 531, 

532. 
V. Watson's Ex'rs, 298. 
McLaughlin v. Cosgrove, 669. 
V. Green, 361. 
V. Teasdale, 955. 
McLean and Jackson's Appeal, 294. 
McLean v. Lafayette Bank, 383, 723. 
V. Tompkins, 685, 798. 
V. Towle, 685, 722. 
McLelland v. Coffin, 398. 
McLoughlin v. Curts, 451. 
McMahon v. Russell, 242, 620, 624. 
McMasters v. Wilhelm, 310. 
McMechan v. Griffing, 492. 
McMillan v. Otis, 84. 

V. Richards, 24. 
McMullin's Adm'r v. Neal, 455. 
McMurray v. McMurray, 782, 966, 

971. 
McNamara v. Culver, 33. 
McNeil V. The Tenth National Bank, 

319, 322. 
McPherson v. Housel, 857. 
V. Rollins, 342. 
McRea v. Cent. Nat. Bank of Troy, 

168. 
McReth V. Simmons, 53. 
McReynolds v. Munns, 823. 
McRimmon v. Martin, 68. 
McSorley v. Larissa, 682. 
Mabbett v. White, iii. 
Mabie v. Hatinger, 419. 
Macaulay v. Porter, 40, 472. 
Machette v. Warless, 194. 
Mack V. Austin, 103, 617. 
V. Mack, 302. 
V. Wetzler, 23, 302. 
Mackellar v. Rogers, 892. 
Mackenzie v. Alster, 11 12. 
Macloon v. Smith, 843. 
Macomber v. The Cambridge Mut. Fire 
Ins. Co., 533, 542. 
V. Dunham, 628. 
Madaris v. Edwards, 363. 
Madison Avenue Baptist Church v. 
Baptist Church in Oliver Street, 
127, 130, 235, 239, 240, 242, 250, 
682. 
Magnusson v. Williams, 1137. 
Maguire v. Park, 1 78. 
Mahagan 7/. Mead, 958. 
Mahaiwe Bank v. Culver, 1089. 
Maher v. Lanfrom, 206, 2i5. 

V. Newbauer, 409. 
Main v. Ginthirt, 885. 



S£ferences are 
to Sections. 



INDEX TO CASES CITED. 



xliii 



Main v. Schwarzwaelder, i66. 

Maine v. Alexander, 86. 

Malcolm v. Allen, 234, 794, 818, 949. 

Mallett V. Page, 431. 

Malloney v. Horan, 626. 

Mallory v. West Shore R.R. Co., 229, 

230. 
Manhattan Brass and Manufacturing 

Co. V. Thompson, 616. 
Manhattan Life Ins. Co. v. Glover, 617. 
Manly v. Slason, 69. 
Mann v. Cooper, 830, 841. 
Mannings. Elliot, 11 34. 

V. Moscow Presbyterian So- 
ciety, 129. 
V. Tyler, 664. 
w. Young, 641, 642. 
Manufacturer's & Mechanic's Bank v. 

Bank of Pennsylvania, 487. 
Mapes V. Brown, 754. 
Maples V. Millon, 160, 166. 
March v. Lowry, 778. 

V. Ludlum, 521, 973. 
Marcy v. Dunlap, 88. 
Margott V. Renton, 204. 
Marie v. Garrison, 993. 
Markham v. O'Connor, 395. 
Markoe v. Andras, 49, 58. 
Marks v. Pell, 18, 19, 695. 
Mario w v. Barlew, 751. 
Marquat v. Marquat, 46, 52. 
Marsh v. House, 667. 

V. Lowry, 778. 

V. Marsh, 19. 

V. Pike, 216, 273, 446, 579, 591, 
592, 593. 594, 704. 722, 723, 

V. Ridgway, 929, 983. 

7/. Russell, 993. 
Marshall v. Davies, 261, 593, 594. 

v. Wing, 400. 
Marston i/. Brittenham, 230. 

■V. Marston, 1083. 
Martin z/. Alter, 17. 

V. Beatty, 289. 

V. Canale, 60. 

V. Franklin Fire Ins. Co., 551. 

V. Fridley, 238, 1027. 

V. Kelley, 681. 

V. Morris, 767. 

V. Mowlin, II, 347. 

V. Rapelye, 204. 

V. Trumbull, 105. 
Martin's Appeal, 381. 
Martindale v. Parsons, 565. 
Martine v. Lowenstein, 785. 
Marvin v. Prentice, 37, 426, 710. 

V. Smith, 626. 



Marvin v. Vedder, 208, 443. 
Marvine v. Hymers, 633. 
Maryland Permanent Land and Build- 
ing Society of Baltimore v. Smith, 

671, 937. 
Masich v. Shearer, 68. 
Mason v. Ainsworth, 297. 

V. Anthoni', 324, 649. 
V. Beach, 342, 343, 419. 
■V. Lord, 310, 647, 649, 657. 
Masters v. Templeton, 60, 741. 
Mathews v. Coe, 647. 

V. Duryea, 622, 1053, 1058, 

1 1 54. 

V. Everett, 281. 

V. Lindsay, 877. 

V. Switzler, 362. 

Matlock V. Todd, 848. 

Mattair v. Card, 608, 865. 

V. Payne, 877. 
Matteson v. Thomas, 451. 
Matthews, Matter of, 140. 

V. Aikin, 273, 444. 
V. Lindsay, 398. 
v. Porter, 19. 
V. Sheehan, 34, 38. 
V. Skinker, 133. 
Mathewson v. Western Assurance Co., 

561. 
Mattix V. Neaud, 17, 60. 
Matzen v. Schaeffer, 448. 
Matzon v. Griffin, 167. 
Maxfield v. Willey, 28. 
May V. Borel, 488. 
V. Gates, 675. 
V. Le Clair, 22. 

V. May, 933, 967, 969, 979, ion. 
Mayer v. Grottendick, 208. 

v. Salisbury, 913. 
Mayor, etc., of Alexandria v. Patten, 

360. 
Mazuzan v. Mead, 661. 
Meacham v. Steele, 381. 
Mead v. Hous. and N. R.R. Co., 778. 
V. Leavitt, 308. 
V. Mitchell, 736. 
V. Parker, 459, 1089. 
V. York, 208, 439, 443. 
Meador v. Meador, 43. 
Mears v. Kearney, 48, 71. 
Mechanic's Bank v. Bank of Niagara, 
294. 
V. Edwards, 652. 
V. Godwin, 106. 
V. N. Y. and N. H. 

R.R. Co., 326. 
z'.Townsend,326,329. 



xliv 



INDEX TO CASES CITED. 



Mechanic's Bank of Williamsburgh v. 

Foster, 664. 
Mechanic's Building Ass'n v. Ferguson, 

420. 
Mechanic's Savings Bank v. GoflF, 593. 
Mechanic's and Trader's Bank v. Rob- 
erts, 877. 
Medley v. Elliot, 263. 
Medsker v. Parker, 625. 
Meech v. Bennett, 993. 

V. Ensign, 576, 590. 
Meehan v. Forrester, 21, 22. 

V. Williams, 492. 
Meeker v. Claghorn, 570. 

V. Wright, 113, 609. 
Meeks v. Whately, 341. 
Megargle's Adm'r v. Megargle, 391. 
Megary v. Funtis, 354. 
Meigs V. Rinaldo, 901. 

V. Willis, 751, 843, 877, 1031, 
1037. 
Meley v. Collins, 345. 
Melick V. Dayton, 867. 
Menagh v. Whitwell, 105. 
Mercantile Mutual Ins. Co. v. Calebs, 

562. 
Merchant v. Thompson, 608. 
Merchant's Bank v. "Thomson, 751, 

843, 844, 995, 1018. 
Merchant's Ex. Bank v. Commission. 
Warehouse Co., 647, 653, 663, 664, 
665. 
Merchant's Ins. Co.w. Grant, 134: 

V. Hinman, 218, 

221, 723, 976. 

Merchant's Nat. Bank of St. Paul v. 

Southwick, 644. 
Meriam v. Harsen, 464. 
Merrill v. Agricultural Ins. Co., 542. 
V. Chase, 439, 442. 
V. Smith, 95. 
V. Swift, 194, 200. 
Merriman v. Hyde, 482. 

V. Moore, 565, 590. 
Merritt v. Bartholick, 23, 26, 227, 302, 

304- ' 

V. Home, 1138. 

V. Hosmer, 680. 

V. Judd, 173. 

V. Lincoln, 218, 221, 224. 

V. Yates, 464. 
Merwin v. Star Fire Ins. Co., 533. 
Mescall v. Tully, 742. 
Methodist Episcopal Church v. Jaques, 

908. 
Metz V. Todd, 215. 
Meyer v. Bishop, 924. 



Meyer v. Lathrop, 216. 

V. Muscatine, 633. 

V. Patterson, 924. 
Michigan Panelling Co. v. Parvell, 

433- 
Michigan State Ins. Co. v. Lewis, 540. 
Michigan State Ins. Co. v. Soule, 273, 

274. 
Mickles v. Dillaye, 254, 255, 338, 698, 
700, 711. 
V. Maxfield, 273. 
V. Townsend, 24, 26, 310, 312, 

338, 363. 364- 
Middlesex v. Thomas, 434. 
Middletown Savings Bank w.Bacharach, 

29. 
Milk V. Christie, 467. 
Millandon v. Brugiere, 913. 
Miller v. Aldrich, 546. 

V. Ansenig, 18. 

V. Avery, 863. 

V. Bowles, 885. 

V. Burke, 942. 

V. Burroughs, 628. 

V. Case, 877, 964, 1039, 1042. 

V. Collyer, 995. 

V. Holbrooic, 206. 

W.Hull, 643, 778, 938, 977, 
1123. 

V. Kerr, 662. 

V. Kolb, 1016. 

V. Lindsey, 370. 

V. Lockwood, 194. 

V. McCan, 213, 219, 668. 

V. Macomb, 1000. 

V. Plumb, 166. 

V. Remley, 818. 

V. Whittier, 196. 

V. Winchell, 447, 577. 
Mills V. Bliss, 771. 

V. Comstock, 472. 

V. Dennis, 775, 812, 841, 953, 

1077, 1080. 
V. Shepard, 149. 

V. Van Voorhies, 621, 731, 781. 
V. Watson, 216, 273, 577. 
Millspaugh v. McBride, 364, 365. 
Miner v. Beekman, 255, 448, 693, 694, 
695, 697, 698, 709, 711. 

V. Sheehan, 96. 
Minnesota v. St. Paul Co., 158. 
Mingus V. Condit, 105. 
Minn v. Berkshire, 447. 
Minor v. Hill, Adm'r, 11 19. 

V. Perry, 565. 

V. Terry, 596. 
Minturn v. Farmer's Trust Co., 665. 



Heferences are 
to iSections 



INDEX TO CASES CITED. 



xlv 



Mississippi Valley R.R. Co. v. Chicago, 

St. Louis & N. O. R.R, Co., 159. 
•Mitchell V. Bartlett, 885, 1020, 1021, 
1 148. 
V. Bowne, 831. 
V. Clark, 341. 
V. Cook, 334. 
V. Coombs, 94. 
V. Reed, 154. 
V. Smock, 455. 
Mix V. Andes Ins. Co., 113, 530, 609. 

V. Hotchkiss, 261, 552, 792. 
Moakley v. Riggs, 227. 
Moffett V. Roche, 275, 279. 
Mohawk Bank v. Atwater, 951. 
Mohr V. Manniere, 143. 
MoUan v. Griffith, 266. 
MoUer v. Duryee, 1 54, 934. 
V. Muller, 741, 937. 
Monell V. Smith, [92, 194. 
Monio V. Perkins, 628. 
Monroe v. Poormun, 462. 
Montague v. Boston & Albany R.R., 
259. 
v. Dawes, iioi. 
Montgomery v. Chadwick, 256. 
V. Merrill, 160. 
V. Scott, 848. 
V. Spect, 33. 
Moor V. Falk, 813. 
Moore, Matter of, 557, 561. 
V. Beasom, 448. 
V. Cable, 246, 253, 256, 258, 259, 

695. 
V. Cameron, 228. 
V. Degraw, 251. 
V. Dunn, 269. 
V. Fuller, 608. 
V. Hamilton, 365. 
V. Harrisburg Bank, 364. 
V. Ingram, 52. 
V. Madden, 18. 
V. Metropolitan National Bank, 

310, 311, 318, 319, 322. 
V. Moore, 275. 
V. Ragland, 192. 
V. Shaw, 832. 

V. Sloan, 307, 334, 470, 498, 503. 
V. Thomas, 445. 
V. Titman, 293. 
V. Ware, 294. 
Moore's Appeal, 571, 573. 
Morford v. Davis, 660, 662. 
Morgan z/. Donovan, 159. 
V. Louisiana, 114. 
V. Martin, 229. 
V. Plumb, 1083. 



Morgan v. Shinn, 674. 
V. Smith, 217. 
V. Walbridge, 255. 
Moring v. Dickerson, 284. 
Morrell v. Dickey, 351, 727. 

V. Noyes, 158. 
Morrill v. Morrill, 193. 
Morris v. Bacon, 301, 309. 
V. Budlong, 34, 248. 
V. Floyd, 652, 653. 
V. Keyes, 461. 
V. Morange, 835. 
V. Morris, Adm'r, 849. 
V. Mowatt, 26, 767, 997, 998, 

ion. 
V. Tillson, 94. 
V. Tuthill, 884. 
V. Wads worth, 475. 
V. Wheeler, 740, 852, 909, 914. 
V. Woodward, 980. 
Morrison v. Bank of Commerce, 29. 
V. Beckwith, 958. 
V. Brand, 33, 39, 474. 
V. McLeod, 256. 
V. March, 492. ■ 
V. Morrison, 403, 817. 
V. Robinson, 682. 
Morrow v. Turney, 252. 

V. U. S. Mortgage Co., 294. 
Morse v. Byam, 11 18. 
V. Curtis, 499. 
Morton v. Thurber, 636. 
Moses V. Murgatroyd, 1062. 
Mosely v. Marshall, 269. 
Mosher v. Campbell, 424, 426. 

V. Vehue, 162. 
Moshier v. Norton, 247. 
Moss, Matter of, 1153. 

V. Shear, 29. 
Motley V. Manufacturer's Ins. Co., 552. 
Mott V. Clark, 499. 
V. Mott, 1003. 

V. Walkley, 972, 973, 983, 988. 
Mount ?/. Potts, 381. 
Mower v. Pitt, 809. 
Mowry v. Bishop, 631, 633. 

f. Sanborn, 195, 1104, 1110, 
1 119, 1 144, 1 147, 114S, 
1150, 1151. 
Moyer v. Hinman, 492, 765. 

V. Shoemaker, 859. 
Muldon V. Whitlock, 391. 
Mulford V. Muller, 18. 

V. Peterson, 364, 365. 
MuUanphy v. Simpson, 680. 
Mulligan's Appeal, 271, 
MuUison's Appeal, 639. 



xlvi 



INDEX TO CASES CITED. 



Eeferences are 
to Sections. 



Mullison's Estate, 314. 
Mulvey v. Gibbons, 698. 
Mundy v. \Vhittemore, 308, 608. 
Munn V. Commission Co., 639, 661. 
Munro v. Merchant, 235. 
Munson, Matter of, 152. 

V. Dyett, 569, S90. 
Murdock v. Empie, 979. 
V. Ford, 293. 
V. Gifford, 171. 
Murphy v. Elliot, 363. 

V. Nathans, 493. 
Murray v. Ballou, 478, 755. 
V. Barney, 652. 
V. Blatchford, 299, 347, 348. 
V. Deyo, 834. 
V. Harway, looo. 
V. Judson, 647, 659. 
V. Lylburn, 310, 312, 649, 755. 
V. Marshall, 213, 216. 
■V. Smith, 565, 573, 596. 
V. Walker, 18, 1097. 
Musgrove v. Bouser, 487. 
Mutual Benefit Life Ins. Co. v. How- 
ell, 597. 
Mutual Ins. Co. v. Transchnicht, 1065. 
Mutual L. Ins. Co. v. Antlfony, 1073. 
V. Balch, 531, 532. 
V. Belknap, 896. 
V. Bigler, 183. 
V. Bowen, 647, 847, 
1044, 1046, 1052. 
V. Dake, 467^ 470, 

1029. 
V. Davies, 223, 594. 
V. Hunt, 141, 1005. 
•V. Kashaw, 641. 
V. Nat. Bank of 
Newburgh, 183, 
■V. Sage, 935. 
V. Salem, 1048. 
V. Spicer, 904. 
V. Sturges, 347. 
V. Tallman, 532. 
V. Wilcox, 458. 
Mutual Safety Ins. Co. v. Hone, 541. 
Myers' Appeal, 194. 
Myers v. Buchanan, 467. 
V. Dorman, 993. 
V. Estell, 885. 

V. First National Bank, 213. 
V. Storms, 79. 
Myrick v. Selden, 772. 

Naarz/. Union, etc.. Land Co., 827. 
Nagle V. Taggart, 781. 
Naitner v. Tappey, 212. 



Nash V. Mitchell, 617. 
National Bank v. Gunhouse, 2op. 
V. Lewis, 664. 
V. Peck, 229. 
V. Piemer, 858. 
National Bank of Genesee v. Whitney, 

132. 
National Bank of Metropolis v. Orcutt, 

664. 
National Bank of Newburgh v. Bigler, 

394- 
National Bank of Norwalk v. Lanier, 

46. 
National Bank of Topeka v. Rowill, 

132. 
National Fire Ins. Co. v. Loomis, 992, 

995- 
V. McKay, 27, 
870, 871. 
National State Bank v. Hibbard, 1069. 
Nay lor z/. Throckmorton, 281. 
Neal v. Allison, 361. 
Neale v. Reid, 546. 
Nealis v. Bussing, 903. 
NefTz/. Crumbaker, 67. 
Neilson v. Blight, 300. 
Neligh V. Michenor, 458. 
Nelson v. Boyce, 192, 200, 201. 
•v. Drake, iii, 115. 
V. Hall, 867. 
V. Iowa & Eastern R.R. Co., 

199. 
V. Montgomery, 913. 
V. Pinegar, i8i. 
New V. Wheaton, 21. 
New Bedford Institution v. Fairhaven 

Bank, 455. 
Newcomb v. Bonham, 674. 
■V. Hale, 225, 227. 
Newell V. Hill, 575. 

V, Pennick, 692. 
V. Whigham, 156, 1034. 
Newhall v. Burt, 16. 
N. J. Franklinite Co. v. Ames, 738. 
Newkirk v. Newkirk, 192. 
Newman v. Dickson, 877. 
New Orleans National Bank v. Ray- 
mond, 133. 
New Orleans, etc., R.R. Co. v. Harris, 

114. 
Newsam v. Finch, 206, 214. 
Newton v. Sly, 625. 

V. Stanley, 726. 
N. Y. Fire & Marine Ins. Co. v. Bur- 

rell, 914, 917. 
N. Y. Ins. Co. V. Howard, 360. 
N. Y. Life Ins. Co. v. Glass, 889. 



B&ferences are 
to Sections. 



INDEX TO CASES CITED. 



xlvii 



N. Y. Life Ins. Co. v. Meeker, 365. 

V. Vanderbilt, 1074. 
V. White, 472, 473, 
480, 511. 
N.Y. L. Ins. & Trust Co. v. Bailey, 731. 
V. Beebe, 331. 
V. Covert,4i3. 
V. Cutler, 271, 

958, 964, 

1031,1033. 

V. Man n i n g, 

631. 
V. Milnor,27i, 
381, 822, 

845, 963- 
^'. Rand, 1033, 

1035- 
V. Smith, 334, 

497, 498. 
V. Staats, 511. 
V. Vanderbilt, 
271,1056. 
Nice's Appeal, 482. 
NichoU V. Nicholl, 966, 971. 
Nichols V. Baxter, 546. 
V. Briggs, 414. 
V. Frothingham, 99. 
z/. Hill, 881. 
■V. Iremonger, 881. 
V. Lee, 338. 

V. Nussbaum, 324, 329, 649. 
Tj. Smith, 1090. 

ii. Weed Sewing Machine Co., 
884. 
Niemcewicz v. Gahn, 275, 383, 394. 
Nightingale v. Maginnis, 671. 
Niles V. Coult, 271. 
V. Harmon, 958. 
V. Nye, 626. 
V. Ransford, 240. 
Niven v, Belknap, 345. 
Nodine v. Greenfield, 734, 736. 
Noe V. Gibson, 904. 
Nolte V. Libbert, Adm'r, 719. 
Noonan v. Ilsey, 859. 

v. Lee, 228. 
Norbury v. Seeley, 877. 
Norris v. Morrison, 624. 

V. Wood, 325. 
North American Fire Ins. Co. v. Handy, 

828. 
North River Bank v. Rogers, 855, 

1087. 
Northampton Bank v. Balliet, 304. 
Northern Ins. Co. of N. Y. v. Wright, 

227. 
Northrop v. Sumney, 867. 



Northrupz'. Wheeler, 1113. 

Norton v. Warner, 353, 675, 718, 723. 

V. Whiting, 919. 
Norwalk Bank v. Sawyer, 105, 106. 
Norwich Fire Ins. Co. v. Boonier, 562. 
Norwood V. De Hart, 590. 
Nosier v. Haynes, 336, 337, 439. 
Nott V. Hill, 801. 
Noyes v. Clark, 228, 231, 232. 

V. Hall, 492. 

V. Patrick, 96. 

V. White, 294. 
Nugent V. Riley, 575. 

Oakes v. Estate of Buckley, 859. 
O'Brien v. Ferguson, 667. 

V. Young, 628, 629. 
O'Conner v. Shipman, 232. 
Odell V. Hoyt, 234. 

V. Montross, 30, 677, 678, 679, 

713- 
V. Wilson, 844. 
©'Dougherty v. Felt, 188. 

V. Remington Paper Co., 
380, 718. 
O'Hara v. Baum, 198. 

V. Brophy, 796, 908, 912. 
V. Haas, 444, 455. 
Ohio and Mississippi R.R. Co. v. Kas- 

son, 647. 
Olcott V. Heermanns, 349. 

V. Robinson, 928. 
Olds V. Cummings, 308. 
Olendorf v. Union Bank, 206. 
Oliphant t/. Esterly, 208. 
Oliver i/. Decatur, 895. 

V. Piatt, 736. 
Olmstead v. Tarsney, 398. 
Olmsted v. Elder, 520, 526. 
Ombony v. Jones, 164. 
Onderdonk v. Gray, 245. 
V. Mott, 139. 
O'Neil V. Capelle, 16. 

V. Clark, 601, 604. 
V. Gray, 5, 917. 
Ontario Bank v. Strong, 811, 815. 
Oppenheimer z/. Walker, 280,965, 1056. 

V. Wright, 610. 
O'Reilly v. Donoghue, 37. 
Orrick v. Durham, 68. 
Oriental Financial Corporation v. Over- 
end, 217. 
Ornn v. Merchant's National Bank, 133. 
Ortmann v. Plummer, 52. 
Orvis V. Powell, 958. 
Osbom V. Carr, 292. 
Ostrom V. McCann, 857. 



xlviii 



INDEX TO OASES CITED, 



Beferences are 
to Sections. 



Otis V. McMillan, 1140. 
Ottman -v. Moak, 444. 
Ould v. Stoddard, 61. 
Outtrin v. Graves, 11 31. 
Overstreet v. Baxter, 15. 
Owen V. Barrow, 354. 

V. Cawley, 608, 612. 

V. Moore, 71. 

Pabodie v. King, 206. 
Packard v. Kingman, 390, 391. 
Packer v. Rochester & Syracuse R.R. 

Co., 23, 24, 1013, 1024, 1026. 
Page V. Ordway, 196. 
V. Pierce, 301. 
V. Waring, 492. 
Paige V. Cagwin, 332. 

V. Chapman, 308, 310. 
Pain V. Packard, 221, 723. 
Paine v. Jones, 216, 592. 
V. Smith, 995. 
V. Upton, 1007. 
Palmer z*. Bates, 11 29, 
Palk ■!/. Clinton, 713. 
Palmer v. Foote, 1084. 

V. Guernsey, 1 5, 40. 
V. Mead, 1075. 
V. Miller, 134. 
V. Simpson, 66. 
■z/. Snell, 279. 
V. Windrom, 850. 
Pancoast v. Duval, 948. 
Parfitt V. Warner, 981. 
Paris V. Hulett, 1075. 
Park Commissioners v. Todd, 149, 
Parke, ^. Neeley, 478. 
Parker v. Browning, 903. 

V. Child, 379, 1027, 1030, 1081. 
V. Hartt, 873. 
V. Jeaks, 598. 
Pardee v. Stewart, 1024, 1026. 
V. Treat, 33, 584, 585. 
V. Van Auken, 363, 685, 687, 
• 702. 
Parkinson v. Hanbury, 243, 248. 
V. Jacobson, 859. 
V. Sherman, 880. 
Parkist v. Alexander, 50, 292, 458. 
Parkman v. Welch, 386. 
Parks V. Jackson, 64, 66, 288, 765. 

■V. Morris Axe & Tool Co., 333. 
v. Parks, 19. 
Parmelee v. Dann, 298, 300. 
Parmentier v. Gillespie, 201. 
Parmer v. Parmer, 30. 
Parsell v. Thayer, 1 5. 
Parshall v. Lamoreaux, 660. 



Parson z'. Wells, 700. 
Parsons v. Hoyt, 284. 
V. Lent, 472. 
V. Lyman, 351, 727. 
Partridge v. Swazey, 478. 
Patchin v. Pearce, 206. 
Paterson v. Clark, 188. 
Paton o. Murray, 725, 735. 
Patrick v. Eels, 905. 
Patrick's Appeal, 294. 
Patterson v. Birdsall, 377, 434, 450. 
V. Clark, 671. 
V. Edwards, 62. 
V. Triumph Ins. Co., 551. 
V. Yeaton, 30, 678. 
Pattison v. Hull, 298, 300, 342, 361. 

V. Powers, 854, 1092. 
Pattoii V. Accessory Transit Co., 237, 
889. 
V. Adkins, 571. 
Patty V. Pease, 271, 383, 385, 388,958. 
Paulus V. Latta, 492. 
Paulding v. The Chrome Steel Co., 1 22. 
Pauley v. Canthorn, 731. 
Payn v. Grant, 844. 
Payne v. Avery, 475. 
V. Becker, 626. 
V. Burnham, 324, 325, 327, 616, 

618, 649. 
V. Hook, 741. 
V. Patterson, 16. 
V. Wilson, 46, 49, 58, 63, 66, 

342, 364- 
Payse v. McGuire, 73. 
Peabody v. Roberts, 693, 694, 730,731, 
1028. 
V. Tarbell, 22. 
Pearce v. Wilson, 1 5, 849. 
Pearsall v. Kingsland, 647. 
Pease v. Warren, 302. 
Peckham v. Haddock, 48, 439, 442. 
Peck V. Knickerbocker Ice Co., 1020, 
1034. 
V. Mallams, 410, 724. 
v. Minot, 335, 362, 441. 
V. N. Y. & N. J. R.R. Co., 977, 
987. 
Peet V. Beers, 448. 
Pell z-. Ulmar, 235, 519, 520, 526, 699, 

1098. 
Pence v. Armstrong, 79, 455. 
Pendleton v. Fay, 310. 
Penfield v. Goodrich, 216. 

V. James, 915. 
Penn. Mut. Life Ins. Co. v. Semple, 

181. 
Penny v, Corwithe, 87. 



Seferences are 
to Sections. 



INDEX TO CASES CITED. 



xlix 



Pensineau v. Pulhman, 13. 
People V. Beebe, 836. 
V. Berner, 224. 

V. Board of Stock Brokers, looi. 
V. Colborne, 1 1 53. 
V. Erie Railway Co., 754. 
V. Globe Mutual Ins. Co., 1002. 
V. Keyser, 343, 347, 348, 421, 

724. 
V. Knickerbocker Life Ins. Co., 

626. 
V. Merchant's Bank, 990. 
V. Miner, 348. 
V. New York Central Railroad 

Co., 987. 
V. Prescott, 1117. 
V. Sigel, 348. 

V. Ulster Common Pleas, 1154. 
People ex rel. Ainslee v. Hewlett, 18, 
632. 
Bridenbecker v. Pres- 
cott, 1159. 
Day V. Bergen, 935. 
Grissler v. Stuyvesant, 

155- 
Johnson v. Nevins, 143. 
Tremont Bank v. Con- 
nolly, 765. 
Weber v. Herbel, 955. 
People's Bank v. Pearson, 213. 
Pepper v. Shepherd, 955. 
Percival v. Gale, 197. 
Perdue v. Aldridge, 790. 
Perean v. Frederick, 88, 462. 
Ferine v. Dunn, 714, 715, 716, 1083. 
Perkins v. Keller, 1109. 
V. Squeer, 216. 
V. West, 18, 492. 
Perot V. Lavassuer, 342. 
Perrin v. Kellogg, 94. 
Perrine v. Striker, 667. 
Perry v. Board of Missions of Albany, 

48, 71. 
Peterson v. Chem. Bank, 298, 352, 727. 

V. Clark, 15, 191. 
Petry v. Ambrosher, 66, 742. 
Pettengrill v. Mather, 423. 
Pettibone v. Griswold, 95, 203. 

V. Stevens, 279. 
Pettus V. McGowan, 498. 
V. McKinney, 52. 
Petty V. Mays, 1021. 

V. Styward, 347. 
Peugh V. Davis, 18, 38, 248, 674. 
Peyser v. McCormack, 795. 
Pfettz V. Pfettz, 238. 
Phelan v. Boylan, 29. 



Phelan v. Olney, 301. 
Phelps V. Johnson, 374. 
V. Sullivan, 298. 
V. Wood, 908. 
Philad., etc., R.R. Co. v. Woelpper, 

158. 
Philbrook v. Clark, 41 1. 
Phillip V. Gallant, 329. 
Phillips V. Bank of Lewistown, 304. 
V. Croft, 19. 
V. Hulsizer, 15, 18. 
V. Mackeller, 637, 641, 642. 
V. Walker, 941. 
V. Winston, 158. 
Phinney v. Day, 29, 167. 
Phippen v. Stickney, 993. 
Phoenix Ins. Co. v. Floyd, 544, 545, 564. 
V. Mut. Life Ins. Co., 
540. 
Phyfe V. Riley, 235, 241, 699, 1098. 

V. Warden, 55, 154. 
Pickard v. Sears, 345. 
Pickett V. Barron, 334, 498. 

V. Jones, 298. 
Pico V. Gallardo, 21. 
Pierce v. Balkam, 787. 
V. Emery, 158. 
V. George, 180. 
V. Goddard, 167, 179, 189. 
V. Goldsberry, 206. 
V. Robinson, 38. 
V. Tiersch, 865. 
Pierson v. Hooker, 347. 
Pigott's Case, 88. 
Pike V. Goodnow, 413. 

V. Seiter, 570. 
Pinnell v. Boyd, 652, 878. 
Pique V. Arendale, 492. 
Piser V. Lockwood, 780, 998. 
Pitney v. Leonard, 489, 764. 
Pitts V. Parker, 52. 
Plant V. Shryock, 459. 
Planter's Bank v. Dodson, 448. 
Piatt V. Brick, 686. 
V. Gilchrist, 863. 
V. Griffith, 199. 
V. Newcomb, 324, 331, 649. 
V. Piatt, 966. 
V. Squire, 295. 
Plimpton V. Ins. Co., 546. 
Plumb V. Cattaraugus Ins. Co., 328, 

649. 
V. Robinson, 691. 
Poillon V. Martin, 317. 
Polhemus v. Tfainor, 154. 
Pollard V. Noyes, 624. 
Pomroy v. Rice, 390. 



1 



IKDEX TO CASES CITED. 



Heferences c^re 

to semmi: 



Pond V. Clark, 211, 390. 
Ponder v. Ritzinger, 391. 

V. Tate, 887. 
Pool V. Horton, 587. 
Poole V. Johnson, 255. 
Pope V. Burrage, 11 28. 
V. Jackson, 174. 
V. Mead, 285. 
Port V. Embree, 482. 
Porter v. Barclay, 741. 
V. Lord, 779. 
V. Muller, 86, 565, 731. 
V. Nelson, 40. 
V. Read, 444. 
V. Woodruff; 66_. 
Post V. Bank of Utica, 648, 652, 666, 
667,708. ' " - 

V. Bernheimer, looi. 
V. Carmalt, 310. 
V. Dart, 64^, 652, 657. 
■». Dorr, 886, 896, 898, 
V. Embree, 291. 
V. Kearney, 155. 
V. Leet, 936, 1008. 
V. Robbins, 208. 
Potter V. Crandell, 721. 

V. Cromwell, 168, 178. 
V. Rowland,; 759, 763. 
Potts V. Plaisted, 398, 400. 
Poughkfeepsie Savings Bank v. Winn, 

935- 
Powell V. Conant, 91. 

V. Smith, 341, 366, 414. 
v. Tuttle, -526. 
V. Waters, 638, 639, 645. 
V. Williams', 252. 
Power z'. Lester, 23, 27, 113, 302, 372, 

626. 
Powers V. Dennison, 167, 1 80. 

V. Trenpr, 819. ' 
Powesheik z/. Dennison, 1119.. 
Pratt V. Adams, 647, 659. '' 

V. Bank of Bennington, 368,. 500. 

V. Clark, 71. ' ~ ' ' 

V. Hoag, 758, 771. 
V. Huggins, 14, 341, 4i;4., 
11. Ramsdell, 690, 914. 
V. Stearns, 210. 
V. Stiles, 908. 
V. Tinkcom, 1 109. 
V. Van Wyck's Ex'r, 71. 
Prentice v. Kiiickerbocter Life Ins. Co., 

543- 
Prentiss v. Cornell, 1005. 
Prescott V. Trueman, 765. 
Preston v. Briggs, 167, 174, 180. 
V. EUingtofl, 58. 



Preston v. Henning, 206. 
Price V. Bray ton, 160. 
V. Cutts, 46. 
V. Grgver, 195. 
V. Karnes, 19,' 
Prickett v. Seybert, 48. 
Prinele 7/. Dunn, 464. 
Probst V. Brock, 162/. 
Proctor V. Farnham, 995, 996. 
V, Robinson, 726. 
v'. Thrall, 395. 
Prouty V, Eaton, 361, 362, 84^. 
V. I'rice, 366, 847. ' 
Providence Co. Bank z/. Benson, 546. 
Pryorz/. Wood, 310. 
Pueblo & A. V. R..R, Co. v. Beshoas, 
24. > ■ ■■. 

Purdy f, Dpyle, 1059. 

V. Huntingtori; 302, 314, 370, 
458,497,4^8, 502. - 
Purnell i^. Vaughari, 11 39. 
Piirser v. Andets.oh, 208, 330, 441, 443. 
Pursley J/. Forth, 337. 
Putnam v. Clark, 321. ' 

vl CoUamore, 363. 

V, Lewis, 391. 

V. Ritchie, 255, 698, 711. 
Pyle V. Pennock, 178. 

Quaw V. Lameraux, 962, 976. 

Quinby w. Manhattan Cloth & Paper 

Co., 172. ■■ ' ■ 
Quincy v. Cheeseman, 890. 
Quinn v. Brittaini "23^, 245, 253, 675, 

798, 709, 8S9, " • ' - 

Quirk v. Rodman, 36. 

Race V. Gilbert, 941. 
Radcliffz/. Rowley,; 425. 
Rahway Savings Inst: v. Irving Street 
Baptist Churchj 171. ' " '' " 
Rammelsberg^ v. Mitchell, 105. 
Ramsey i/. IDaniels, 448. ' 
Rar)d3.11 v. Lovyer, 27. 
' I/. R'aab, S35. 

V. Sanders, 33, 35^, 36, 
Randell v. VOti Ejlert, 940J' 
Randfield v., Randfield, 964. 
Randle v. Boyd, 844. 
Randlet v. Herl'en, 859. 
Randolph v, Wilsoh, 598. 
Rankin v. Refornied Protestaiyt Dutch 
Church, 789. ' ■'"■'' "• ' 

Ranney v. Hardy, 492.. 

V. McMuUen, '602. 

V. Peyser, 898, S99. 
Rapalye v, Rapalye, 267. 



toSecHons, 



INDEX TO OASES CITED. 



Rapelye v. Anderson, 66i, 829. 

V. Prince, 261, 448, 691, 809. 
Rapp V. Stoner, 573. 
Rardin v. WaJpole, 451. 
Rathbone v. Clark, 822, 960, 963, 1 1 20. 
V. Hooney, 730, 751,843,844. 
V. Warren, 213. 
Rawiszer v. Hamilton,, 364, 1034. 
Rawson v. Lampman, 284, 736, 856. 
Rawson's Adm'xz/. Copeland, 575, 596. 
Rray V. Adams, 42, 46, 286. 

V. Oliver, 929. 
Raymond v. Holborn, 1027; 
Raynoi: v. Lyons, 22. 

V. Ray nor, 303, 623, 624, 11 13. 
V. Selmes, 711, 986, ion, 1012, 

1027. 
V. Wilson, 478. 
Reading v. Weston, 652. 

V. Worton, 33. 
Reagan v. Hadley, 445. 
Real Estate Trust Co. v. Balch, 598. 
V. Keech, 671. 
v. Rader, 324, 

671. 
V. Sea g reave, 
324, 649. 
Rector, etc., Christ P. E. Church v. 

Mack, 937, 1013, 1024,, 1025. 
Redden v. Miller, 11 36. 
Reddick v. Gressman, 8i8. 
Reddish v. Ritchie, 310. 
Redman v. Punington, 228. 
Redmond v. Packenham,, 1129, 
Reed v. BulUngton, 341. 
V. Eastman, 652. 
V. Gannon, 489, 490. 
V. King, 445. 
V. Latson, 873, 880, 883. 
V. McKee, 849. 

V, Marble, 334^ 498, 731, 1031. 
V. Ounby, 290. 
V. Reed, 36. 
Reeder -v. Nay, 389. 
Reel V. Wilson, 767. 
Rees V. Overbaugb, 88. 
Reese v. Kinkead, 52. 

V. Rutherfurd, 629. 
V. Scully^ 308, 310. 
Reeside v. Peter, 929. 
Reeves v. Hayes, 308, 334., 

V. Kimball, 310. 
Reformed Dutch Church in Saugerties, 

Matter of the, 126, 128. 
Reid V. McCrum, 547. 
V. Middleton, 904. 
V. Sprague, 322. 



Reinback v. Crabtree, 664. 
Reineman v. Robb, 310. 
Reinig v. Hecht, 831. 
Remington v. Palmer, 56.5. 
Remington Paper Co. v. O'Dougherty, 

425. 
Remsen v. Beekman,,22l, 222, 594, 723. 

V. Hay, 678. 
Renard v. Brown, 1027. 
Renand v. Conselyea, 724. 
Rensselaer & Saratoga R.R. Co. v. 

Davis, 919. 
Renwick v. Macomb, 1039. 
Requa v. Rea, 966, 967, 983, 995, 101 1. 
Rexford v. Widger, 648, 652, 667. 
Reynolds v. Dishon, 410, 837. 
V. Lounsbury, 327. 
V. Munns, 987. 
V. Ward, 206. 
Rhoades v. Canfield, 460. 
Rhodes v. Buckland, 1130. 
V. Dutcher, 996. 
V. Evans, 750, 831. 
Ricard v. Sanderson, 584, 598. 
Rice V. Barrett, looi, loio. 

V. Dewey, 167, 376, 392, 495. 
V. Goddard, 600, 861, 869. 
V. Harbeson, 269, 279. 
V. Mather, 638. 
V. Mormer, 96. 
V. Rice,.i4. 
Rich V. Doane, 37, 38. 
Richards w. McPherson, 60. 

v. MerrimacR.R. Co., 114. 
V. N. W. Protestant Churchy 

128. 
V. Richards, 941. 
V. Warring) 310. 
Richardson v. Baker, 71. 

V. Codding^on, 360. 
V. Hamblett, 48. 
V. Jones, 995. 
V. McKim, 293. 
V. Wright, 376.. 
Richmond'!/. Gray, looi. 
Riddle v. George, 281. 
Rider, Matter of, 973. 

V. Bagley, 8S7, 896. 
Rider v. Vrooman, 896, 898. 
Rigby, ex par U, 299. 
Riggs V. Purcell, 157, 1006. 

V. Purssell, 324. 
Rigler v. Light, 281. 
Rigney v. Lovejoy, 435, 448. 
Riley v. Hoyt, 487, 491. 
V. Rice, 879. 
v. Sexton, 459. 



m 



INDEX TO CASES CITED. 



References are 
to Sections, 



Ring'Z'. Steele, 481. 
Ring's Ex'r v. Woodruff, 261. 
Ripley v. Harris, 1 32, 200. 
Risk V. Hoffman, 446. 
Ritch v. Smith, 206, 215. 
Ritter 7/. Phillips, 202, 628, 880. 

•v. Worth, 464. 
River Clyde Trustees v. Duncan, 354. 
Roach V. Cosine, 15. 
Robbins 7/. Cheek, lor. 
V. Todman, 437. 
V. Wells, 727. 
Roberts v. Cocke, 98. 

V. Fleming, 255. 
V. Halstead, 300, 301, 418. 
•V. Jackson, 496. 
V. Mansfield, 293, 294. 
V. Stigleman, 720. 
V. Sutherlin, 235. 
V. Wiggin, 856. 
V. Wood, 341, 843. 
Robertson v. Campbell, 38. 
V. Cossett, 174. 
Robinson v. Bates, 626. 

z>. Brennan, 79, 933. 

V. Cropsey, 18, 31, 33, 36. 

V. Glass, 848. 

V. Leavitt, 435, 448. 

V. McGregor, 1064. 

V. Meigs, 970. 

V. Pebworth, 493. 

V. Preswick, 166, 176, i8i, 

892. 
V. Robinson, 268, 275. 
-v. Russell, 185. 
V. Ryan, 238, 261, 304, 448, 
691, 692,711,809, 1027, 
1081, mo, 1137, 1142. 
V. Stewart, 448. 
V. Willoughby, 33. 
V. Williams, 66, 192, 194, 200, 
203, 288. 
Rochester Savings Bank v. Averell, 

119, 122. 
Rockwell V. Hobby, 42, 44, 66. 

V. Humphrey, 38. 
Roddam v. Morley, 413. 
Roddy's Appeal, 275. 
Roder v. Ervin, 298. 
Roderigas v. East River Savings 

Inst'n, 359. 
Rodgers v. Bonner, 765. 
Rodman v. Sanders, 53. 
Rogers v. Abbott, 290. 
V. De Forest, 84. 
V. Dill, 139. 
V. Eagle Fire Ins. Co., 575. 



Rogers v. Herron, 252. 

■V. Hosack's Ex'rs, 562. 

V. Ivers, 1050. 

V. McLean, 997. 

■V. Traders' Ins. Co., 211, 389, 

390. 537- 
Rolston V. Brockway, 301. 
Roney v. Moss, 103. 
Roosevelt v. Bull's Head Bank, 400. 
V. Carpenter, 269, 1086. 
w EUithorp, 787, 911, 1065. 
V. Gardiner, 467. 
Roosevelt Hospital v. Dowley, 741. 
Roosevelt-z/. N. Y. and Harlem R.R. 

Co., 400. 
Root V. Collins, 271. 

V. Wheeler, 1053, 1 1 14, 1 142. 

V. Wright, 584, 586, 742, 878. 
Rosa v. Butterfield, 663. 

V. Jenkins, 909, 913, 917. 
Rose V. Kimball, 306. 

V. Meyer, 790. 

7'. Rose, 432. 

V. Watson, 682. 
Rosevelt v. Bank of Niagara, 311, 360, 

675, 685. 
Ross V. Boardman, 1030, 1077. 
Ross & Co's & Elsbrie's Appeal, 464. 
Ross V. Shurtleff, 71. 

V. Terry, 304, 333, 1089. 

V. Worthington, 494. 
Roussel V. St. Nicholas Ins. Co., 552. 
Rowan v. Sharpe's Rifle Mfg. Co., 199. 
Rowe V. Ream, 492. 
Rowell V. Mitchell, 396. 
Rubens v. Prindle, 216, 228, 234, 273, 

591- 
Ruckman v. Astor, 700. 
Rue V. Doll, 40. 
Ruhe V. Law, 995. 
Runyan v. Mesereau, 23, 302, 347. 

V. Stewart, 453. 
Rushmore v. Gracie, 749. 
Russell V. Allen, 273. 

V. Austin, 624. 

V. Duflon, 1 1 54. 

V. Ely, 235. 

V. Kinney, 202, 880. 

V. Miner, 431, 445. 

V. Pistor, 274, 338, 363, 378, 
446, 581, 592. 

V. Southard, 37, 562. 

V. Weinberg, 222, 594. 

V. Whitely, 1027. 

V. Winne, 96. 
Ryan v. Dox, 13, 18, 990. 
V. Preston, 532. 



Befermuies are 
to SeMona. 



INDEX TO CASES CITED. 



liii 



Ryder v. Gaes, 339. 
Ryerson v. Willis, 868. 

Sage V. McLaughlin, 1075. 

Sager v. Tupper, 271. 

Sahler v. Signer, 13, 235, 367. 

Sailly V, Elmore, 222, 226. 

St. Andrew's Church v. Tompkins, 203, 

292. 
St. John V. Bumpstead, 235, iioi. 
V. Palmer, 333. 
V. Spaulding, 458, 499. 
St. Joseph Mfg. Co. v. Daggett, 963. 
Sales V. Lusk, 887. 
Salisbury v. Philips, 102. 
Salmon v. Allen, 377, 711, 1028, 1081. 
Sammis v. Mathews, 638. 
Sample v. Rowe, 301. 
Sanborn v. Osgood, 865. 
Sanders v. Farrell, 836. 
V. Hooper, 862. 
V. Lake Shore & Michigan 

Southern Railway, 629. 
V. McDonald, 758, 1027. 
V. Wilson, 248. 
Sandford v. Bulkley, 720. 

V. Travers, 600, 859, 863. 
Sands Ale Brewing Co., Re, 546, 547. 
Sands v. Church, 653. 

V. Pfeififer, 172, 178. 
Sanford v. Hill, 271. 

V. McLean, 449. 
V, Sanford, 1005. 
Saunders v. Frost, 920. 
V. Stewart, 18. 
Savage v. Howard Ins. Co., 540. 

V. Long Island Ins. Co., 284, 

856. 
V. Scott, 94. 
Saville v. Saville, 995. 
Savings Bank v. Grewe, 298. 

V. Munson, 381. 
Savings Bank of Utica v. Wood, 965, 

1056. 
Saving & Loan Soc. v. Gibb, 109. 

V. Meeks, 850. 
Sawyer v. Lyon, 684. 

V. Pritchett, 308. 
V. Weaver, 574. 
Saxton V. Hitchcock, 31, 38. 
Sayles z/. Smith, 1123. 
Sayre v. Austin, 628. 

V. Hewes, 200, 296. 
Scarborough v. Stinson, 259. 
Scarry v. Eldridge, 790. 
Schafer v. Reilly, 311, 314, 323. 
Schaffz/. O'Brien, 1092. 



Scharck v, Shriner, 271, 383, 385. 
Scheibe v, Kennedy, 818. 
Schell V. Stein, 470. 
Schenck w. Kelley, 28, 243, 263. 
Schen 7/. Lehning, looi. 
Schermerhorn v. Talman, 666, 667, 708, 
709. 
V. Prouty, 941. 
Schiffer v. Feagin, 94. 
Schley v. Fryer, 569, 572. 
Schmidt v. Hoyt, 290. 
Schmucker v. Sibert, 413, 566. 
Schroepel v. Shaw, 218, 219, 221. 
Schroeppel v. Corning, 639, 647. 
Schryver v. Teller, 271, 958. 
Schultz V. Pulver, 351. 
Schulze V. Bolting, 200. 
Schumber v. Dillard, 482. 
Schutt V. Large, 481. 
Schwinger v. Hickok, 828. 
Schwickerath v. Cooksey, 850. 
Scofield V. Doscher, 827, 1090, 1091. 

V. State Nat. Bank of Lincoln, 
133. 
Scott V. Brest, 258. 

V. Frink, 204. 

V. Gallagher, 492. 

V. Johnson, 664. 

V. Stockwell, 206, 212, 214. 

V. Trustees, etc., 115. 
Scranton v. Clark, 333. 
Scrivner v. Dietz, 845. 
Sea Ins. Co. v. Stebbins, 237, 885, 889, 

892, 904, 905. 
Seaman v. Hicks, 767, 997, 1009. 
Seaver v. Durant, 235, 700. 
Sebring v. Conklin, 877. 
Second Baptist Society in Canaan, Mat- 
ter of the, 128. 
Security Fire Ins. Co. v. Martin, 811, 

812. 
Sedgwick v. Fish, 937. 

V. HoUenbaek, 23. 
V. Johnson, 300. 
Selchow V. Stymus, 565. 
Selden v. Mann, 181, 186. 
Selkirk v. Wood, 788. 
Selleck v. French, 98. 
Sellwood V. Gray, 1027. 
Semon v. Terhune, 478. 
Seton V. Slade, 674. 
Severance v. Griffith, 14, 102, 303. 
Seward v. Huntingfton, 455, 1027. 
Seymour v. Canandaig^a R.R. Co., 47. 
V. De Lancey, 1000, 1003. 
V. McKinstry, 484. 
Shaeffer v. Chambers, 245, 247, 248. 



liy 



IKDEX TO CASES CITED. 



Beferenoea are 



Shafer v. Bear River, etc., Mining Go., 
103. 
V. Reilly, 332. 
Shanahan v. Perry, 574. 
Shannon v. Hall, 467. 
Shapley v. Abbott, 328, 649. 
Sharp z/. Barker, 228, 232, 261. 
V. Cutler, 813. 
V. Shea, 477. 
V. -Wyokoif, 628. 
Shattuck V. Lamb, 863. 
Shawe/. Bell, 158. 

V. Carpenter, 92. 
V. D wight, 425. 
V. Heisey, 1077. 
V. Hoadley, 742. 
V. McNish, 734. 
V. Newsam, 293. 
Shaver v. Williams, 433. 
Shays v. Norton, 15, 19. 
Shear v. Robinson, 462. 
Shearer I/. Shearer, loj, 108. 
Shed V. 'Garfield, 790. 
Sheddy v. Gerau, 336. 
Sheehan v. Meyer, 154. 
Sheehy v. Mandeville, 98. 
Sheffield's Ex'r v. McClain, 338. 
Shelden v. Bennett, 720. 
Sheldon v. Edwards, 167, 364. 
V. Ferris, 270, 363. 
V. Haxtun, 643. 
V. Patterson, 626. 
V. Wright, 928. 
Shepard v. Ins. Co., 540. 

V. The Mayor, etc., of New 

York, 149. 
V. Philbrick, 160. 
V. Shepard, 113, 203. 
Shephard v. Little, 193. 

V. Shephard, 79. 
Shepherd v. Murdock, 892. 
Sheppard v. Steele, 360. 
Sheridan v. Andrews, 773. 

V. Jackson, 900. 
Sherill v. Crosby, 519. 
Sherman v. Dodge, 520, 523. 
V. Sherman, 340. 
V. Willett, 160, 163, 565, 1 127, 
1151. 
Sherwood v. Archer, 645. 
V. Dunbar, 427. 
V. Hooker, 715, 716. 
V. The Mayor, etc., of New 

York, 149. 
V. Reade, 520, 525. 
V. Wilson, 423. 
Scheuy v. Latta, 295, 



Shields v. Lozear, 240. 

Shillaber v. Robinson, 13. 

Shinn v. Shinn, 446. 

Shirk V. Andrews, 1030. 

Shirkey v. Hanna, 720. 

Shirley ii. Sugar Refinery, 60, 66, 67. 

Shirras v. Craig, 85, 95, 193, 195. 

Shook V. State, 218. 

Shorb V, Beandry, 865. 

Shotwell V. Smith, 885, 887. 

Shrieve v. Harkinson, 903. 

Shriver^/. Shriver, 239, loao, looi, 1003. 

Shuart v, Taylor, 173. 

Shufelt V. Shufelt, 647, 855, 1087. 

Shuler v. Maxwell, 969. 

Sibbett V. Stryker, 18. 

Sibley v. Baker, 271. 

Sickles V. Flanagan, 638. 

Sidenberg zi. Ely, 28, 261, 448. 

Siewart v. Hamel, 6^9, 640, 830. 

Sigel V. Johns, 615. 

Silsbee v. Smith, 708. 

Silver Lake Bank v.. North, 261, 448, 

685, 691, 809. 
Simers v. Saltus, 862, 1026. 
Simms V. Kelly, 608. 
Simon v. Schmidt, 674. 
Simons V. First National Bank, 133, 

I9S- 
V. Pierce, 175. 
Simonson v. Blake, 793, 828. 

V. Falihee, 469. 
Simpson v. Del Hoyo, 319, 331, 448. 

V. Simpson, 1086. 
Sims V. Hammond, 297, 302. 
Simson v. Brown, 590, 6q2. 
V. Ingham, 360. 
V. Satterlee, 718. 
Sinclair v. Armitage, 76. 
Singer ManuPg Co. v. Rook, 462. 
Singer v. Troutman, 223. 
Sinking Fund Com'rs v. Peters, 591. 
Sinnett v. Cralle, 1017. 
Sirett V. Hooper, 98. 
Sisson V. Hibbard, 178, 179. 
Siter V. McClanachan, 292. 
Skeel V. Spraker, 271, 364, 366, 367, 958^ 
Skelton v. Scott, 85, 790. 
Slater v. Breese, 79, 279. 
Slaughter v. Swift, 235. 
Slausen v. Watkins, 577, 592, 723, 
Slee V. Manhattan Co., 18, 1 54, 264, 353^ 
69s. 717.74s. 910. 920, 1022, 1099, 
iioo, iioj, 1129, 1149. 
Sleight V. Reed, 1048. 
Slicer v. Hyde Park, 1 50. 
Sloan V. Frothingham, 238, 1 1 38. 



Befefemeiare 
to Sections. 



iStdex to cases cited. 



Iv 



Sloan V. Holcomb, 89. 

V. Rice, 208, 390. 
Slocum V. Glass, 979. 
Slbsson V. DufiF, 1052. 
Sraalley v. Doughtey, 664. 

V. Martin, 818. 
Smart v. Bement, 877, 962, 964, 1042. 

V. Haring, 623. 

V. McKay, 818. 
Smedberg v. Sinlson, 645. 
Smidt V. Jackson, 1077. 
Smith V. Atnerican Life Ins. Co., 966. 

V. Austin, 445. 

V. Brackett, 146. 

V. Brand, 13. 

V. Caniiell, 27. 

V. Clarke, loio. 

V. Col. Ins. Co. 559. 

V. Cross, 590, 638, 639, 652, 667, 
878. 

V. Diirell, 340. 

V. Fellows, 88. 

V. Fititig, 859. 

v. Frayler, 221. 

V. Gage, 765. 

V. Gardner, 238, 711, 1027. 

V. Graham, 94, 879. 

V. Hague, 160. 

v. Hathorn, 632. 

V. Heath, 151. 

V. Heermaiice, 981. 

V. High, 5i. 

V. Hutchinson, 81. 

V. Jackson, 492, 1049. 

V. Jencks, 164. 

V. Joyce, 797, 1017. 

■V. Kelly, 680, 683, 887. 

V. Kidd, 354. 

V. Lusher, 107. 

V. ^yers, 671. 

V. Neilsqn, 449. 

V. Newton, 800. 

7/. Ostermeyer, 591. 

*. Putnam, 157. 

v. Read, 574. 

V. Rice, 188. 

V. Roberts, 364, 366, 367, 741. 

V. Robei-tson, 447. 

V. Shay, 1027. 

V. Smith, 58, 356, 774. 

V. Starr,^ 298. 

V. Stevens, 301. 

V. Tiffaiiy, 298, 352, 885. 

V. Townsend, 212, 215, 220, 275, 
394, '610. 

7/. Truslow, 565, 571, ^98. 

V. Webb, 332, 727. 



Smith V. Wells, 998. 

V. Winter, 218. 
Smith Paper Co. v, Servin, 172. 
Smithers v. Heather, 639. 
S. & M. R.R. Co.w. Lancaster, 229. 
Smyth V. Knickerbocker Life Ins. Co., 
332, 498, SCO, 649. 

V. Lombardo, 324, 649. 

V. McCool, 1009. 

V. Munroe, 324, 332, 618, 649. 

■z/. Rowe, 27. 
Snedeker v. Snedeker, 1050, 1052. 

V. Wa,rring, 166, 167, 170. 
Snelling v. Mcl.ntyre, 448, 453. 
Snoddy v. Leavitt, 29. 
Snyder v. Robinson, 362. 

V. Snyder, 365. 

V. Stafford, 271, 280, 381, 932, 
964, 965, 1056. 

V. Summers, 577. 
Solberg v. Wright, 294, 1105. 
Soule V. Ludlow, 279, 1114, 1125, 1135, 

1137- 
V. The Union Bank, 554. 
South Baptist Society of Albany v. 

Clapp, 129.. 
South Fork Canal Co. v. Gordon, 1017. 
Southampton Boat Co. v. Muntz, 11 30. 
Southard v. Dprrington, 261, 448. 
Southbridge Savings Bank v. Exeter 

Machine Works, 180. 
Southern Central R.R. Co. v. Town of 

Moravia, 628. 
Southern L. I. & T. Co. v. Packer, 663. 
Southworth v. Parker, 387. 
V. Scofield, 367. 
V. Van Pelt, 188, 190. 
Souverbye v, Arden, 90. 
Sowarhy v. Russell, 230. 
Spwden V. Craig, 180. 
Spader v. Lawler, 201. 
Spafford v. First National Bank, 132. 
Spargner v. Hall, 848.. 
Sparkman v. Gove, 567. 
Sparks v. The State Bank, 460. 
Spaulding v. Hallenback, 575. 
Spear z". Cutter, 186. 
V. Haddon, 94, . 
V. Whitfield, 363. 
Spears v. Hartley, 341, 414. 

V. Mayor, etc., of New York, 1 52. 
Speigleineyer v. Crawford, 685. 
Spencer v. Ayrault, 364, 371, 631. 
V. Fredendall, 439. 
V. Harford, 1083. 
v. Spencer, 102, 213, 216. 
Speilman v. KUest, 458, 488. 



Ivi 



INDEX TO CASES CITED. 



Beferences are 
toSecUona. 



Splahn V. Gillespie, 1017. 
Spring V. Fisk, 232. 

V. Reed, 642. 

V. Sandford, ICXJ4. 

V. Short, 65, 66, 67, 70, 288. 
Springfield F. & M. Ins. Co. v. Allen, 

529. 544- 
Springsteene v. Gillett, 832. 
Spurgeon v. Collier, 674. 
Spurgin v. Adamson, 255, 680. 
Spyer v. Fisher, 779. 
Stackpole v. Robbins, 377, 379, 836, 

1 1 37. 
Stafford v. Adair, 731. 
V. Ballou, 295. 
Stafford Nat. Bank v. Sprague, 17. 
Stafford v. Van Rensselear, 281, 294, 

460. 
Stahl V. Charles, 983. 

V. Hammontree, 859. 
Stanclifts v. Norton, 228, 232, 261. 
Stanley v. Beatty, 293, 301. 

V. Valentine, 432, 436. 
Stansell v. Roberts, 286. 
Stanton 7/. Kline, iioi, mo. 
Stantons v. Thompson, 364, 365, 448. 
Staples V. Fenton, 492. 
Starling v. Blair, 79. 
State V. Bradish, 287. 
V. Davis, 467, 476. 
V. Glenar, 159. 
V. Martin, 155. 
V. Newark, 433. 
State Bank v. Tweedy, 293. 
State Bank of Bay City v. Chappelle, 17. 
State Savings Bank v. Kicheval, 167. 
Strause v. Josephthal, 306. 
Steadman v. Hayes, 25. 
Steam Navigation Co. v. Weed, 1 1 J. 
Stearns v. Porter, 95. 

V. Quincy Mut. Life Ins. Co., 

546. 

V. Welsh, 938. 

Stebbins v. Hall, 446, 571, 573. 

V. Howell, 358, 438. 
Steel V. Steel, 1 5. 
Steele v. Mealing, 454. 
V. Sturges, 904. 
Steen v. Clayton, 937. 
Steere v. Childs, 271, 273, 961. 
Stephen v. Beale, 751. 
Stephens v. Allen, 38. 

V. Casbacker, 601, 655. 

v. Hall, 877. 

V. Illinois Mutual Fire Ins. 

Co., 531. 
V. Shannon, 52, 53, 68. 



Sterling v. Rogers, 374. 
Stern v. O'Connell, 758, 760, 767. 
Stembergh v. Schoolcraft, 1005. 
Stevens v. Bank of Central New York, 
1049. 

v. Batchelder, 476. 

v. The Buffalo and New York 
R.R. Co., 158. 

■V. Cooper, 382, 388, 684. 

V. Dennett, 345. 

V. Miner, 716. 

V. Reeves, 650, 743. 

V. Veriane, 914, 915. 
Stevenson v. Black, 571. 

V. Fayerweather, 765. 
Stewart v. Bramhall, 663. 

V. Clark, 868. 

V. Hutchins, 47, 1097. 

V. Hutchinson, 46, 1014. 

V. Jones, 114. 

V. McMahan, 381. 
Stidham v. Matthews, 68. 
Stiger V. Bent, 300, 342, 354, 742. 
Stillman v. Stillman, 368. 

V. Van Beuren, 896. 
Stilwell V. Van Epps, 794. 
Stimson v. Arnold, 1021. 
Stockwell V. The State, 79, 730. 
Stoddard v. Gailor, 334, 813. 

V. Hart, 43, 93, 197, 409.439- 
V. Whiting, 13, 33, 458, 678. 
Stoddart v. Rotton, 472. 
Stone V. Lane, 94. 

V. Scripture, 352, 727. 
V. Seymour, 630. 
Stonebreaker v. Kerr, 478. 
Stoney v. The American Life Ins. Co., 

647. 
Storer v. Bounds, 45. 
Storm V. Smith, 1017. 
Story 7/. Hamilton, 1128, 11 51. 
Stoughton V. Pasco, 95, 203, 465. 
Stout V. Folger, 577. 
V. Rider, 642. 
Stove V. Bounds, 674. 
Stover V. Wood, 431, 445. 
Stow V. Tifft, 121, 149, 284, 621, 856. 
Stowe V. Merrill, 16, 99. 
Strang v. Beach, 850. 
Stratton v. Putney, 18. 
Street v. Beal, 680. 
Strong V. Burdick, 28, 262. 
V. Converse, 365. 

V. DoUner, 1020. 

V. Ins. Co., 529, 531. 

V. Stewart, 18. 

V. Van Duerson, 285. 



Seferences are 
to Sectt(mB. 



INDEX TO CASES CITED. 



Ivii 



Strpther 7/. Law, 1105. 
Stryker v. Storm, 984. 
Studabacker v. Marquardt, 878. 
Stunner v. Bachelder, 340. 
Sturtevant v. Sturtevant, 16. 
Stuyvesant v. Hall, 271, 347, 348, 381, 
384,388,421,478,765, 
958, 
V. Hone, 384, 765. 
Suffern v. Johnson, 944, 953. 
Suffield V. Baskervil, 103. 
Suffolk Fire Ins. Co. v. Boyden, 562. 
Sullivan v. Toole, 167, 172, 191. 
Summers v. Kanawha, 28. 
Sumner v. Anderson, 105. 

V. Barnard, 27. 

V. Waugh, 310. 
Susquehanna Canal Co. v. Bonham, 

114. 
Sussex Mut. Ins. Co. v. Woodruff, 530. 
Sutherland v. Rose, 423, 424, 702, 716. 

V. Woodroff, 661. 
Suydem v. Bartle, 854, 1095, 1096. 
Swaine v. Ferine, 624. 
Swan V. Yople, 302. 
Swartz's Ex'rs v. List, 294, 309, 344,458. 
Swartwout v. Curtis, 357, 420, 421. 
Sweeney v. Williams, 324. 
Sweet V. Jacocks, 1062. 

V. Van Wyck, 317. 
Sweetman v. Prince, 333.- 
Sweetzer v. Jones, 178, 879. 
Swett V. Sherman, 273, 274. 
Swezey v. Thayer, 1062, 1064. 

V. Willis, 1062. 
Swift V. Kraemer, 391, 453. 

V. Stebbins, 738. 
Swope V. Leffingwell, 443. 
Syracuse Bank v. Tallman, 885, 887. 

Tabele v. Tabele, 620, 622, 627, 919. 

Tabor v. Foy, 308, 310. 

Taft V. Taft, 91. 

Tainter v. Hemingway, 565. 

Talbot V. Berkshire Co., 600. 

Tallman v. Bressler, 155. 

V. Farley, 286. 
Tallmadge v. Wallis, 600, 859, 869. 

V. Wilgers, 384. 
Talmage v. Pell, 883. 
Tarbell z/. Bradley, 105. 

V. West, 105, 458, 478. 
Tartt z/. Clayton, 11 28. 
Tasker v. Bartlett, 231, 356. 
Tate V. Jordan, 760. 
Tator V. Adams, 1052. 
Tatum Bros. v. Walker, 710. 



Taylor v. Adams, 1028. 
V. Kearn, 1013. 
V. McLain, 18. 
V. Page, 308, 310. 
V. Post, 93, 94, 197, 208, 286. 
v. Root, 908, 909. 
V. Short, 388. 
V. Stibbert, 1006. 
V. Thomas, 99. 
V. Wendell, 267. 
V. Wendling, 96. 
V. Wing, 296, 628, 629. 
Tefft V. Munson, 27, 458, 480. 
Temple v. Whittier, 11 29. 
Tenbrook v. Lansing, 1020. 
Ten Eyck v. Craig, 23, 28, 243, 263. 
Ten Hoven v Kerns, 201. 
Terhune v. Taylor, 671. 
Territory of Utah v. Golding, 15. 
Terry v. Woods, 340. 
Terwilliger v. Brown, 990. 
Texvia v. Evans, 87. 
Thayer v. McGee, 419. 

V. Mann, 341, 414. 
V, Marsh, 590. 
V. Torrey, 571. 
Thebaud v. HoUister, 367. 
Third National Bank v. Blake, 608. 
Thomas' Appeal, 439. 
Thomas, Petition of, 1064. 
V. Brown, 1096. 
V. Desmond, 790. 
V. Dickinson, 565. 
V. Dunning, 736. 
V. Hanson, 620. 
■V. Kelsey, 477, 1055. 
V. Olney, 97. 
V. Simmons, 363. 
V. Vinton, 175, 180. 
Thomas' Adm'rs v. Von Kapff's Ex'rs, 

546. 
Thomason v. De Mott, 774. 
Thompson, Matter of, 659. 
V. Berry, 645. 
V. Chandler, 292. 
V. TheCommissioners,523. 
V. Davies, 993. 
V. Dimond, 996. 
V. Hickey, 147. 
V. Jarvis, 847. 
V. Maxwell, 487, 850. 
V. Mount, 982. 
V. Schmieder, 1007, 1009. 
V. Spittle, 105. 
V. Van Vechten, 647, 657, 

847. 
V. White, 91. 



Iviii 



INDEX TO CASES CITED. 



Siclltbiii. 



Thomson v. Baildiiig Association, 79. 

V. Smith, 75. 

V. Wilcox, 79, 475, 491. 
Thome v. Newby, 747, 827. 
Thornton v. Enterprise Ins. Co., 564. 

V. Nat. Exchange Bank, 398. 

V. Pigg, 1084. 
Thorp V. Keokuk Coal Co., 575, 576, 

589. 
Thorton v. Irwin, 343. 
Thurman v. Cameron, 461. 
Thurston v. Cornell, 635. 

V. Marsh, 233, 6go, 914. 
Tibbetts v. Moore, 178. 
Tibbs V. Morris, 13, 18, 37. 
Tice V. Annin, 273, ^78, 446, 722, ro85. 
Tichenorz/. Dodd, 571, 867. 
Tiernan v. Thurman, 68. « 

7/. Wilson, 951. 
Tiffany v. Willis, 1089. 
Tifft V. Buell, 290. 

V. Horton, 167, 178, 179, i8b. 
Tilden v. Streeter, 19. 
Tillinghast v. Frye, 683. 
Tillotson V. Boyd, 596. 
Tillou V. Kingston Mutual Ins. Co. 

530, 534- 
Titus V. GtenS Falls Ins. Co., 543. 
V. Neilson, 620, 622, 624. 
V. Velie, 912. 
Tobias v. The Mayors etc., of N. Y., 80. 
Toles V. Adee, 222. 
Toll V. Hiller, 335, 441, 833, 985. 
Tomlinson v. Thompson, 189. 
Tompkins v. Hyatt, 1006. 
V. Seely, 685. 
V. Tompkins, 204. 
Toome v. Cohset, 674. 
Toomer v. Randolph, 235; 
Toplis V. Baker, 354.1, 414. 
Torrey v. Bank of Orleans, 273, 274, 
960, 990. 
V. Foss, 813. 
Totten V. Stuy^efeant, 773-. 
Tousley v. Tousley, 97. 
ToWer P. White, 1065. 
Towner v. McClelland, 368. 
Townsend, Ih the Mattbr of, 430. 
Townsend t>. Empite Stdhe Dressing 
. Co., 196, 204, 439. 
%>. Goelet, 425. 
V. Ward, 571; 
Tracy v. N. Y. Steam Faucet Co., 877. 
Tradesman's Association v. Thompson, 

434. 449- 
Trader's Ins. Co. z>. Robert, 534. 
Traphagen v. IrWin, 478. 



Trask v. Vinson, 600, 861. 
Traveller's Ins. Co. v. Patten, 29, 731. 

■V. Ybunt, 851. 
Trayser v. Trustees of Indiana AsbUry 

University, 204, 937. 
Trenton Bakirig Co. v. Woodworth, 
- 889. 

Trecothick v. Austin, 351. 
Trimble v. Thorhe, 225. 
Trimm v. Marsh, 23, 24, 242, 243. 
Triplett v. Paririlee, 185. 
Tripp V. Cook, 972, 973, 983, 985. 

V. Vincent, 96, 192, 216, 273, 341, 

591- 
Trotter v. Hughes, 575, 581, 589. 

V. Irwin, 53. 
Troost V. Davis, 255. 
Tl-dup V. Haight, 4^4, 936. 
Trucks V. Lindsey, 38. 
Triill V. Bigelow, 499. 
■V. Fuller, 180. 
V. Skinner, 30, 678. 
Trullinger v. Kolford, 375. 
Truscott V. King, 95, 99, 192, 195, 201, 

203, 208, 362, 478. 
■Trust Co. V. Fisher, 253. 
Trustees, etc., v. Anderson, 604. 
Trustees of Almshouse v. Smith, 413. 
Trustees Can. Academy v. McKechnie, 

464. 
Trustees of Jones v. Roth, 754. 
Trustees of Northern Dispensary of N. 

Y. V. Merriam, 598. 
Trustees of Union College v. Wheeler; 
297, 314. 319, 334> 381. 384. 401. 
492. 49;*'- 
Tryon v. Sutton, 79, 851. 
Tuck V, Hartford Fire Ins. Co., 541. 
Tucke V. Bucfkholz, 84:8. 
Tucker 7). Cooney, 862. 

V. Moireland, 857. 
Tulley V. Harloe, 96, 193. 
Turk V. Funk, 287. 
7/. Ridge, 102. 
Turman v. Cooper, 650. 
Turner, in re, 139. 

V. Flinn, 436. 

V. Kerr, 15. 

V. Peck, 59. 

V. Quincy Ins. Co., 551. 

V, WilkittSon, 18, 19, 21, 33, 36, 

25!2. 

Turnipseed v. Cunningham, 38. 
Tuthill V. Davis, 645. 

V. Morris, 399, 405, 686. 

V. Tracy, 1 148. 

V. Wilson, 570. 



Hsferetuxs Ore 
to SecMone. 



INDEX TO CASES CITED. 



lik 



Tuttle V. Jackson, 487, 489. 
Tutwiler v. Dunlap, 877. 
Tydings v. Pitcher, 68. 
Tylee v. Yates, 392. 
Tyler v.. Etna Fift Ins. Co., 541. 

V. Granger, 24. 
Tyrrell v. Ward, 449. 
Tyson v. Applegate, 736. 

V. Cox, 218. 
Twombly v. Cas&idy, 448, 456, 685, 686, 
688, 690. 

Uhlei- V. Semple, 100, 199. 
Ulrick V. Drischell, 792. 
Ulster Co. Savings Institution v. Deck- 
er, 544, 545, 564. 
Ulster Co. Savings Ihstittition z/. Leake, 

544. 545. 564- 

Umfreville v. Reelef, 13. 

Underbill v. Atwatfir, 439, 441. 
V. Crennan, 43^. 

Unger v. Liter, 620, 621. 

Union v. Sprague, 17. 

Union Bank v. Bell, 736. 

V. Emerson, 166, 172. 

Union Dime Savings Instn. v. Ahda- 
riese, 924. 

Union Dime Savings Instn. v. Duryee, 
290, 505. 

Union Dime Savings Insth. v. Osley, 
1047. 

Union Diine Savings Insth. %/. Quinh, 
244. 

Union Dime Savirigs Inistn. v. Welmot, 
324, 638, 647. 

Union Instn. for Savings V. City of Bos- 
ton, 628. 

Union Ins. Co. v. Van Rensselaer, 1042. 

Union Nat. Bank v. Matthews, 133. 

United States v. Hool, 192. 

v. New Orleante R.R. Co., 

159. 
V. Powell, itf27. 

U. S. Bank v. Chapih, 628. 

U. S. Ins. Co. V. Shriver, 4581 

U. S. Rolling Stock Co., Matter of, 778. 

U. S. Trust Co. f. N. Y., W. S. & B. 
R.R. Co., 907. y 

Upson V. Milwaukee Nat. Bank of Wis- 
consin, 896. 

Urquhard v. Brayton-, 576. 

Usina v. Wilder, 79. 

Vail V. Foster, 60. 

V. Hamiltoh, 118, 12S. 
Valentine, Matter of, 14J. 
V. Belden, ^9<3. 



Valentine v. McCue, 928. 

V. Van Wagner, 228. 
Vallejo V. Randall, 778. 
Van Amburgh v. Kramer, 1 1 3, 609, 626. 

V. Lester, 302. 
Van Bergen v. Demarest, 1 1 34. 
Van Beuren v. Gaasbach, 628. 
Van Bokkelen v. Taylor, 419. 
Van Buren v. Olmstead, 18, 245, 248, 

675, 717, 920. 
Vance v. Foster, 532. 
Van Dayne w. Shann, 1027. 
Vandegraaf v. Medloek, 546. 
Vandemark v. Schoomnaker, 181. 
Vandei-bilt w. Schreyer, 1089. 
Vandercook v. Baker, 308. 

V. The Cohoes Sav. Insti- 
tution, 687, 964, 966. 
Vanderheyden v. Gary, 770. 
Vanderkemp v. Shelton, 238, 273, 334, 

446, 497, 498. 692, 711, 741, 823, 

1024, 1027, 1 142. 
Vanderpoel 'z/. Van Allen, 17I, 175. 
Vanderslice v. Khapp, 181. 
Vanderveer ». Conover, 81. 
Vandiveer v. Stickiley, 80. 
Van Dusen v. Worrell, 18, 22. 
Van Duyne v. Thayer, 25, 235, 241, 620, 

699, 1098. 
Van Epps v. Van Epps, 990. 
Van Etta v. Evenson, 87. 
Van Hookw. Throckmorton, 1031,1034. 
Van Horn i>. Powers, 568. 
Vah Home v. Grain, 284, 856. 
Van Huson v. Kanoner, 398. 
Van Kueren Ij. Corkins, 332, 334, 354, 

355. 358. 458. 497, 500, 501. 
Van Nest v. Latson, 742. 
Vannice v. Bergen, 436. 
Van Orden v. Btidd, 22. 
Vanordeh v. Johnson, 383. 
Vail Orttian v. McGregor, 462. 
Van Pelt v. McGraw, 176, 188, i«9. 
Van Rensselaer v. Clark, 281, 481. 
V. Denniison, 76. 
V. Stafford, 2811 314, 
460. 
Van Schaack v. Saunders, 1 1 1 2-. 
Van Sickle v. Palmer, 328. 
Van Slykfe v. Sheldon, li»i. 

■V. Van Loan, 271, 962, 964. 
Van Tassell v. Wood, 635, 643, 657. 
Van Thornily v. Peters, 291; 
Van Valen v. Schermertefn, 568. 
Van Valkenburgh v-. Trustees of 

Schools, 955; 
Van Vechten v. Terry, 738. 



Ix 



ISTDEX TO CASES CITED. 



Beferemxes are 
to Sections. 



Van Wagenen v. La Farge, 833. 
Van Winkle v. Williams, 449. 
Van Wyck v. Alliger, 184. 

V. Baker, 20. 

V. Walters, 642. 
Varick v. Briggs, 312, 483. 
Varian v. Stevens, 779. 
Varney v. Hawes, 97. 
V. Stevens, 29. 
Vartie v. Underwood, 275, 622, 731, 

1058. 
Vassear v. Livingston, 874. 
Veazie v. Williams, loio. 
Vechte v. Brownell, 1 1 30. 
Veeder v. Fonda, 767, 929, 997, 1008, 

loii. 
Verdin v. Slocum, 736, 998. 
Verges v. Giboney, 423. 
Vehue v. Mosher, 165. 
Vermilya v. Beatty, 727. 
Vernon v. Smith, 546. 
Vernum v. Babcock, 678. 
Vert V. Voss, 455. 
Vick v. Smith, 360, 361. 
Vickery v. Dickson, 638, 645, 646. 
Viele V. Judson, 307, 345, 436, 470, 498, 

503. 971- 
Vilas V. Jones, 219, 667, 668. 
Villa V. Roderiguez, 30, 678. 
Vincent v. Moore, 261. 
Vleit V. Young, 15. 
Vogan V. Caminetti, 198. 
Voorhees v. Bank, etc., 797. 

V. McGinnis, 166, 168, 175, 
178, 179, 180. 
Voorhis v. Freeman, 178. 
Voris V. Thomas, 263. 
Vredenbergh v. Burnet, 281, 294. 
Vreeland v. Loubat, 742. 

V. Torrey, 151. 

V. Van Blarcom, 567. 
Vroom V. Ditmas, 238, 692, 717, 910, 

920, 1027, 1 1 37, 1 142. 
Vrooman v. Dunlap, 102. 

V. Turner, 566, 576, 590, 612. 
Vroome 11. Van Home, 351, 727. 

Waddell v. Carlock, 48, 53. 

Wade, Case of, 8. 

Wadsworth v. Lyon, 380, 444, 1085. 

V. Williams, 338, 363. 
Wagner v. Hodge, 735. 
Wake V. Hart, 1 109. 
Wakefield Bank v. Truesdell, 206. 
Wakeman v. Price, 987. 
Walbridge v. James, 941. 
Walcott V. Morris, 15. 



Waldo V. Richmond, 295. 
Waldron v. Waldron, 267. 
Wales z/. Sherwood, 567, 591. 
Walker v. Buffands, 281. 
v. Cockey, 1104. 
V. Covar, 279. 
V. Dement, 294. 
V. Goldsmith, 573. 
V. Mebane, 392. 
V. Sherman, 173. 
V. Snediker, 192, 197, 203, 440. 
V. Vaughan, 158. 
Wall Street Fire Ins. Co. v. Loud, 892. 
Wallace v. Feely, 950. 
V. Field, 837. 
V. Harris, 91. 
Wallis V. Long, 419. 
Walls V. Baird, 103, 385. 

V. Endel, 18. 
Walsh V. Powers, 612, 857. 

V. Rutgers Fire Ins. Co., 238, 

245, 711, 1027. 
v. Weidenfeld, 917. 
Waltermire v. Westover, 414. 
Walters v. Walters, 284, 391. 
Walthall, Ex'r, v. Rines, 243. 
Walton V. Cronly, 155. 

V. Hollywood, 261, 448. 
Walworth 2/. Farmers' Loan & Trust 

Co., 954. 
Wandle v. Turney, 706. 
Wanzer v. Cary, 302, 334, 358, 370. 
Ward V, Cooke, 200, 201. 
V. Dewey, 1028. 
V. James, 938, 941, 942. 
V. Kilpatrick, 172. 
V. McNaughton, 731. 
V. Price, 363. 
V. Van Bokicelen, 743. 
Warfield v. Fisk, 18. 

V. Trickey, 221. 
Waring w. Loder, 529, 534, 555. 
V. Smyth, 24, 88, 
V. Waring, 770. 
Warner v. Blakeman, 365, 443, 1 1 29, 
1 136. 
V. Gouverneur, 873, 885, 891. 
V. Van Alstyne, 55, 59, 66, 

72, 288, 621. 
V. Winslow, 472. 
Warren v. Boynton, 271, 960. 
V. Fenn, 66. 
V. Fmn, 60, 
V. Taylor, 105, 107. 
V. Warren, 448. 
Warwick v. Dawes, 643. 

V. Hammell, 895. 



Kf/erences are 
to Sections. 



INDEX TO OASES CITED. 



]xi 



Washington Co. v. Slaughter, 291, 
Washington Life Ins. Co. v. Flei- 

schauer, 896, 898. 
Waterman v. Curtis, 259. 
V. Hunt, 107. 
V. Matteson, 191. 
V. Webster, 342, 357. 
Waters v. Hubbard, 273, 274, 792. 
V. Stewart, 23. 
V. Waters, 419. 
Waterson v. Devoe, 28. 
Watkins v. Hill, 208, 390. 
Watt V. Alvord, 731. 
■V. Burnett, 383. 
Watson V. Bailey, 664. 
V. Church, 781. 
V. Dundee M. & Ter. Invest. 

Co., 1027. 
■zA Fuller, 628. 
V. Hunter, i86, 191. 
V. McLaren, 324, 330. 
V. Spence, 235, 239, 1028, 

1098. 
V. Wilcox, 449. 
Way V. Patty, 60. 
Waydell v. Luer, 212, 376, 391. 
Wayman v. Cochrane, 300. 
Weaver v. Barden, 482. 
V. Edwards, 436. 
V. Toogood, 273. 
Weathersley v. Weathersley, 38. 
Weber v. Fowler, 467, 763. 

V. Zeimet, 274. 
Webb V. Haselton, 308. 

V. Stone, 97. 
Webster v. Phoenix Ins. Co., 543. 
V. Singley, 362. 
V. Vandeventer, 299. 
V. Van Steenbergh, 482. 
Weed V. Calkins, 829, 1093. 
V. Covin, 102, 103. 
V. Hornby, 261, 262. 
V. Stevenson, 13, 15, 743. 
Weeks v. Tomes, 760, 761, 770, 998. 
Weems v. Coker, 813. 
Weide v. Gahl, 16, 21. 
Weil V. Fischer, 324, 649. 
Weil & Bro. v. Uzzell, 844. 
Weir V. Mosher, 348. 
Weisburger v. Weisner, 492. 
Welch v. Beers, 273, 274. 
V. Buckins, 621. 
V. Priest, 304. 
Weld V. Rees, 1137. 
V. Sabin, 448. 
Welland Canal Co.z/. Hathaway, 328. 
Welling V. Ryerson, 685. 



Wells V. Chapman, 652. 

V. Francis, 72. 

V. Hydraulic Co., 792. 

V. Lincoln Co., 1027. 

V. Maples, 171, 180. 

V. Rice, 235. 

V. Tucker, 680. 

V. Wells, 1 104, 1 109, 1 1 27. 
Wendell v. Wendell, 7S9, 911. 
Wernwag v. Brown, 628. 
Weseman w.-Wingrove, 935. 
West Point Iron Co. v. Reymert, 464. 
West V. Reed, 679. 
Westbrook v. Gleason, 64, 319, 458, 

482, 483, 486, 497, 500. 
Westcott V. Gunn, 212. 
Westerlo v. De Witt, 302. 
Western Bank v. Sherwood, 231. 
Western Ins. Co., etc., v. Eagle Fire 

Ins. Co., 583, 741, 823. 
Western Res. Bank v. Potter, 741,743. 
Westervelt v, Ackley, 613. 
Westfall V. Hintze, 453. 
V, Jones, 310. 
V. Westfall, 21. 
Westgate v. Handlin, 1123. 
Wetherell v. City Fire Ins. Co., 539. 
Wetmore v. Roberts, 238, 255, 698, 

711, 1114, H42. 
Weyh V, Boylan, 324, 326, 330, 649, 

797. 
Whalin v. White, 1020. 
Wh.irfw. Howell, 14, 36. 
Wharton v. Moore, 167. 

V. Webster, 191. 
Whealan v. McCreary, 25. 
Wheeland v. Swartz, 38. 
Wheaton v. Voorhis, 664. 
Wheeler v. Benedict, 224. 

■V. Kirtland, 149. 

V. McFarland, 281. 

V. Morris, 731, 

V. Scully, 780. 

V. Van Keuren, 1039, 1065. 

V. Wheeler, 299, 348. 

V. Willard, 435. 
Wheelock v. Lee, 667. 
Wheelwright v. Depeyster, 363, 382, 

384- 
White V. Albertson, 782. 

V. Bartlett, 741, 767. 

V. Bogart, 1052. 

V. Brown, 264, 562. 

V. Carpenter, 46. 

V. Coulter, 759, 766, 781, 974, 

98s. 
V. Duggan, 298. 



Ixii 



INDEX TO, CASES CITED. 



'to iSectiOT^f, 



White V. Evans, 1028. 
V. Graves, 462. 
V. Knapp, 364. 
V. Leslie, 86, 281. 
V. Lester, 519, 520; 
V. McClellan, 11 18, 1119.. 
V. McNett, 616. 
V. Moore, 472, 
V. Patton, 480. 
V. Poillon, 1043., 
V. Seaver, 1006. 
V, Southerland,, 308, 
V. Stretch, 858.' 
V. Turner, 638. 
V. Willianns, 58, 60, 
Whitehead v. Fisher, 294, 1027. 
Whitmore v. Shiverick, 105. 
Whiteworth v. Rhodes, 1131, 
Whitfield V. Riddle,, 11 28. 
Whiting V, Gearty, 602, 
Whitlock V. Waltham, 354.. 
W"hitbeck v. Rowe, 956.! 
Whitney v. Allen, 1020. 
Whitney Arms Co. v. Barlow, 115. 
Whitney v. Buckman, 851. 

V. City of New Hayen, , 149, 

V. Dinsmore, 862, 

v. Franklin, 338, 

V. McKinney, 707,, 743.. 

■V. N. Y. and Atlwtip I^.R. 

Co., 893. 
V. Townsend, 31. 
■V. Union Trusl; Co. of N. Y., 
115. 
Whittacre v. Fuller, 212. 
Whittemore v. Gibbs, 300. 
Whittick V. Kane, 18, 21, 472, 679. 
Whittington v. Flint, 383. 

V. Wright, 478; 
Whitton V. Whitton, ic». 
Whittredge v. Edmunds, 961 
Wilbor V. Danolds, 1033. 
Wilbur V. How, 993. 

V. Warren, Matter of, 578. 
Wilcox V. Allen, 293, 555., 
V. Campbell, 578. 
V. Howell; 329. 
z/i Wilcox, 108. 
Wilder z-. Brooksi 458. 
Wiles V. Peck, 607. 
Wiley V. Angel, 985. 
Wilhelm v. Woodcock, 38. 
Wilkes V. Harper, 444, 449. 
Wilkinson v. Roper, 38. 
Willard v. Wood, 575. 
Willets V. Van Alst, 994. 
Williams v. Allen, 671. ' 



Williams v. Ayrault, 644, 
V. Beard, 23., 
V. Birbeck, 459, 497. 
V, Buck, 647. 
7/. Crow, 52. 
V. Eaton, 831. 
V. Fitzhugh, 666, 671. 
v.. Gilbert, 200. 
V. Gillies, 570. 
V. Hern on, 916. 
V. Houghtaling, 630. 
V. Perry, 958. 
V. Robinson, 888. 
V. Storrs, 351, 727. 
V. Tatnall, 290. 
V. Thorn, 302, 472. 
v^ Tilt, 647. 
V. Townsend, 28, 262, 691, 

818. 
V. Walker, 354. 
?-, Wilson,, 388. 
V. Woodard, 81. 
Williamson v. Brown, 203, 487, 488, 
490. 
V. Champlinj 854,, 1090,- 

1096. 
V, Dale, 982, 
V. DuSfy, 616. 
V. Field, 736, 1004, 
V. Geriach, 898. 
■V. N. J. South. R.R. Co., 
158. 
Willich V. Taggart, 204._ 
Willis V. Henderson, 738, 

V. Twambly, 856. 
Wilsey v._ Dennis^ 568. 
Wilson V. Boyce, 79, 851. 
V. Ejgenbrodt, 293. 
V. Grant, 840. 
V. Harvey, 646. 
V. Hunter, iii. 
w. Kimball, 302, 433, 435. 
z/. King, 565. 

V. Maltby, 185, 188, ,189,, 191. 
V. Russ, 77. 
V. Russell, 201. 
V. Stillwell. 577. 
V. Troup, 8?, 298, I ICQ, 1 104, 

1105. 
V. Vaugn, 97. 
V. Wilson, 76. 
Winchell v. Coney, 97. 
Windsor z/. Kennedy, 361. 
Winebrener v. Johnson, 692, 731. 
Wing V. Cooper, 38. 

V. Field, 238, 239. 
V. Hayford,, 381. 



References are 
to 8ecU<m8. 



INDEX TO CASES CITED. 



Ixiii 



Winne v. Niagara Fire Ins. Co., 553. 

V. Reynolds, 1006. 
Winship v. Jewett, 8ig. 
Winslow V. Clark, 692, 705, 707, 731, 
1027, 1081. 
V. McCall, 235, 241, 334,498, 

1053, 1114. 
V. Merchants' Ins. Co., 167, 
171, 178. 
Winsted Bank v. Webb, 670, 671. 
Winters v. Bank, 293. 
Wise V. Fuller, 590. 

V. Willard, 215. 
Wiseman v. Westland, 478. 
Wiswall V. McGowan, 764. 
Witbeck v. Van Rensselaer, 1 56. 
Withers v. Little, 484. 
V. Morrell, 864. 
V. Powers, 863. 
Witzinski v. Everman, 194, 199, 203. 
Wolcott V. Schenck, 280, 951, 956, 976. 

V. Weaver, 811. 
Wolf 7/. Smith, 381. 
Wolff z-. Walter, 445. 
Wolfinger's Adm'r v. Betz, 843. 
Wood and Bowen's Appeal, 470. 
Wood V. Bank, 132. 

V. Chapin, 86, 483, 484, 487. 

V. Colvin, 1 1 29. 

V. Jackson, 1017, 1138. 

V. Lester, 163, 459. 

V. Mann, 995. 

■V. Martin, 826, 1016. 

V. Mather, 139. 

V. Moorhouse, 731, 734, 928, 

93°- „ , 

V. People's Nat. Bank, 132. 

V. Reeves, 461. 

V. Scott, 96. 

V. Smith, 446. 

V. Surr, 1083. 

"J. Terry, 521, 525, 527. 

V. Westborough, 149. 

V. Whelan, 167. 

V. Wood, 427. 

Woodbury v. Aiken, 419. 

V. Fisher, 290. 

V. Swan, 567. 

V. Swann, 29. 

Woodford v. Bucklin, 909. 

WoodhuU V. Osborne, 955, 972, 973. 

Woodruff t/. Bush, 979. 

V. Mutscher, 342. 

V. Robb, 17. 

V. Stickle, 386. 

Woods V. Bank, 132. 

V. Hildebrand, 23. 



Woods V. Love, 767. 

V. Morrell, 950. 

V. Spaulding, 959. 

V. Wallace, 624. 
Woodward v. kepublic Fire Ins. Co., 

S4P. 
Woodworth v. Bellows, 877. 
V. Carman, 19. 
V. Zimmerman, 792. 
WooUey v. Constant, 87. 
Woolsey, in re, 971. 
Wooten V. Bellinger, 67. 
Wordier v. Busch, 243. 
Wormouth v. Hatch, 565, 576. 
Worthington v. Wilmot, 247. 
Wright V. Austin, 610. 

V. Bartell, 213. 

V. Bates, 19. 

V. Briggs, 565. 

V. Clapp, 667. 

V. Fedderke, 281. 

V. Gay, 18. 

V. Gray, 167. 

V. Holbrook, 57, 72, 268, 269. 

V. Langley, 261. 

V. Miller, 782. 

V. Shumway, 13, 48, 790. 

V. Storrs, 218. 

V. Troutman, 48. 

V. Ware, 347. 

V. Wright, 813. 
Wunderlich v. Reis, 1 54. 
Wyatt V. Benson, 128. 
Wyckoff z'. Scofield, 896, 901, 906. 

V. Remsen, 290, 482. 
Wyeth V. Branif, 639. 
Wyman v. Smead, 298. 
Wynkoop v. Cowing, 678. 

Yaryan v. Shriner, 17. 

Yale V. Dederer, 605, 606, 607, 608, 

612. 
Yates V. Joyce, 188. 

V. Woodruff, 924. 
Yelverton v. Sheldon, 707. 
Yerger v. Barz, 493. 
Yerks v. Blodgett, 813. 
York V. Allen, 600, 859, 862. 
York Co. Savings Bank v. Roberts, 

443- 
Young V. Bloomer, 987. 

V. Brand, 261, 1027. 

V. Eagle Fire Ins. Co., 540. 

V. Guy, 374, 482. 

V. Hawkins, 593. 

V. Hill, 631. 

V. Hunter, 403. 



Ixir 



INDEX TO CASES CITED. 



BjeSffrm.c^ are 
to Sections. 



Young V. McLean, 230. 

V. Tarbell, 620. 

V. Trustees for the Support of 
the Public Schools, 604. 

V. Whitney, 736. 
Youngs V. Wilson, 194, 203, 475. 



Zabriskie v. Salter, 274. 
V. Smith, 727. 
Zane v. Fink, 18. 

V. Kennedy, 218. 
Zeiter v. Bowman, 755, 765, 857, 904. 
Zoll V. Carnahan, 67. 



MORTGAGES OF REAL PROPERTY. 



CHAPTER I. 



HISTORY OF MOETaAGES AND THEIK NATTJEE. 



§ I. Antiquity of mortgages. 

2. Mortgages under the civil law. 

3. Mortgages among the Anglo-Sax- 

ons and the Normans. 

4. Mortgages at common law. 

5. Welsh mortgages. 

6. The mortuum vadium or mort- 

gage. 

7. The mortgage described by Little- 

ton. 

8. The equity of redemption. 

g. Once a mortgage, always a mort- 
gage. 

10. Rights of mortgagor and mortgagee 

at law and in equity. 

11. Early cases. 

12. Definition of a mortgage. 

13. Not necessary that the grant be ex- 

ecuted by person to be treated 
as mortgagor. 

14. Personal obligation to pay not a 

necessary element. 

15. Form of agreement for redemption. 



§ 16. Agreement for redemption must 
enter into original contract. 

17. Trust deeds. 

18. It is not requisite that the defeas- 

ance should be in writing. 

19. Burden of proof to establish parol 

defeasance. 

20. Pleading. 

21. Sale to bona fide purchaser. 

22. Remedy against mortgagee for 

selling property. 
. 23. Nature of the estate of the mort- 
gagor. 

24. Right of mortgagee as to possession. 

25. A mortgagee is deemed a purchaser 

sub niodo, 

26. A mortgage is a lien. 

27. After-acquired title of mortgagor. 

28. Purchases at tax sales bymortgagee. 

29. Purchases at tax sales by mortgagor 

and those claiming under him. 

30. Purchase of equity of redemption 

by mortgagee. 



§ 1. Antiquity of mortgages. — In almost every age there have 
been devices employed by means of which men could obtain credit 
upon the faith of their property, without entirely parting with title 
to it. The right to transfer property scarcely became recognized 
before conditional or qualified transfers followed, and the history of 
every system of jurisprudence gives some record of regulations by 
which such transactions were governed and controlled. In tracing 
the history, therefore, of the present law of mortgages, and in seeking 
the source from which it sprung, we are at once embarrassed by its 
great antiquity, and by the multitude of places in which, at remote 
periods, similar contracts were known. 



2 MORTGAGES OF EEAL PEOPEETT. [§ 2. 

It is certain that mortgages of a peculiar nature were known 
among the Jews, and it is the opinion of some writers that with 
them the practice of mortgaging lands had origin. Land could not, 
according to the Jewish law, be aliened beyond the next jubilee, 
which occurred every iSf ty years, and the original owner was allowed 
to redeem at any time on payment of the value to be computed from 
the time of redemption to the next jubilee. When the day of jubilee 
arrived, the land returned to the owner discharged of the debt.' 

§ 3. Mortgages under the civil law.— As the Eoman Empire 
absorbed all other kingdoms and nationalities, so the Koman lawyers 
seized upon the wisdom and learning of the conquered provinces, and 
whether, as some suppose, they borrowed the idea of mortgage from 
the Jews, or whether the suggestion came, from some other source, 
they certainly developed a system, the wisdom and equity of which 
rendered it a potent force in framing the codes of later times, long 
after the valor of the Koman legions had become mere matter of 
history. 

In the Roman law there were two kinds of transfers as securities 
for debts : the pignus and the hypotheca. When the pledge passed 
into the possession of the creditor, the transaction was termed & pig- 
nus, while, if the debtor retained possession, it was known as an 
hypotheoa.'^ The distinction between real and personal estate, which 
prevailed in the common law, was not recognized, but, just as in the 
common law, the term pledge, though frequently applied to both real 
and personal property, is more commonly used in reference to a chat- 
tel, so the term pignus came to signify in strictness a pledge of a 
movable, and the word hypotheca of an immovable piece of property." 
No title to the thing pledged passed, and, although the debt was not 
paid at the stipulated time, it did not amount to a forfeiture of the 



' Coote on Mortgages, 3. The follow- have borrowed money for the king's 

ing is from Nehemiah, chap. V, i to 7: tribute, and that upon our lands and 

" And there was a great cry of the peo- vineyards. . . . And I was very angry 

pie and of their wives against their breth- when I heard their cry and these words, 

ren, the Jews. For there were that said, Then I consulted with myself, and I re- 

We, our sons and our daughters, are buked the nobles and the rulers, and said 

many ; therefore we take up corn for unto them. Ye exact usury, every one of 

them, that we may eat and live. Some his brother. And I set a great assembly 

also there were that said. We have mort- against them." 

gaged our lands, vineyards, and houses, * Story's Eq. Jur. § T005. 

that we might buy com, because of the ' Id., § 1006. 
dearth. There were also that said. We 



§ 3.] MOKTGAGES AND THEIE NATURE. 3 

right of property of the debtor therein. The creditor was simply 
clothed with the authority to sell the pledge and reimburse himself 
for his debt, interest and expenses, and the residue of the proceeds 
of the sale then belonged to the debtor. Where it was practicable, 
notice of the sale was always required to be given to the debtor ; pro- 
vision was made for sales under judicial sanction, and, when the 
mortgaged property could not conveniently be sold, a decree in the 
nature of a foreclosure could be obtained, by which the absolute prop- 
erty would be vested in the creditor.' The authority to make the 
sale was held to arise not from the agreement of the parties, but from- 
the general nature of the contract, and an order of sale would be 
granted upon application of the creditor, even . in a case where a 
special bargain had been made that there should be no sale. On the 
other hand, a stipulation providing that, if the debt were not paid at 
the day, the property should belong to the creditor in lieu of the 
debt, was held void, as being inhuman and unjust." 

§ 3. Mortgages ^mong the Anglo-Saxons and the Nor- 
mans. — It is a matter of doubt as to whether mortgages were known 
to the Anglo-Saxons. We are in a great degree ignorant of the 
nature of their law of landed property. The most profound writers 
are at variance, the one side asserting the law of feuds and tenures to 
have been acknowledged, the other that it was not. But it seems to 
be admitted that a right of free alienation of property existed, which 
implies the right of mortgage or conditional sale ; and whether the 
feudal law was recognized or not, it is manifest that it was not ad- 
mitted with the burdensome restrictions afterward introduced by 
the Norman feudists.' 

After the Norman conquest, mortgages must for a time have be- 
come uncommon. The titles of such portions of the kingdom of 
England as were not portioned out by the Conqueror to his retainers 
and friends were, soon after that time, surrendered to him, and were 
regranted on the feudal terms of homage and fealty, and from thence- 
forth the feudal law prevailed. It was the poHcy of that system of 
law to regard the land as the common source of wealth and power ; it 
was deemed to be a valuable right^of the lord that his tenants should 
be his friends, and of the tenants that their lord and his heirs, and not 
a stranger, should continue to rule over them, and the restraints and 



' Story's Eq. Jur. § loo8. ' Id., § loog. ' Coote on Mortgages, 4. 



4 MOKTGAGES OF EEAL PEOPEKTT. [§§ 4-5. 

burdens upon alienation were therefore multiplied, until mortgages 
of land must have been nearly extinguished.* 

Another discouragement to the mortgaging of land was found in 
the fact that the loaning of money at interest was exceedingly un- 
popular ; and while it was lawful for a Jew to lend to a Christian — 
in analogy to the Jewish law which declared it to be an offense for a 
Jew to exact usury of a Jew — the taking of usury from a Christian 
by a Christian was thought to be detestable, and it was punished by 
the forfeiture of the lands and chattels of the creditor, if he died 
possessed of the pledge.'' 

The passage of the statute of Quia emptores terra/rum, in the 
eighteenth year of the reign of Edward I., simplified the tenure and 
gave greater freedom to alienations of land, and the restrictions which 
impeded the conveying of landed property being removed, mort- 
gages became general." 

§ 4. Mortgages at common law. — The common law recog- 
nized two kinds of landed securities, the vivum vadium and the 
■mortuv/m vadium. They were both determinable or base fees, with 
a right of reverter in the feoffor on the payment of a given sum ; 
but they differed in this, that while in the case of a vi/oumi vadium 
the right of the feoffor to redeem continually remained, in the case 
of a mortuum vadiuTn the title to the estate and all interest in it 
became vested in the feoffee, if the condition were not punctually 
performed. In the first case, the feoffee took possession, and the 
rents and profits of the land went to diminish the debt, which the 
feoffor was privileged at any time to pay and resume his possession ; 
in the second, the feoffee did not ordinarily go into possession, but if 
the condition were not performed, the estate was thereafter forfeited 
to the feoffee." It is not probable that the vivum, vadium, ever 
passed into general use as a security, and there is no trace of the 
period when it first fell into disuse." 

§ 5. Welsh mortgages. — A form of security bearing a resem- 
blance to the vivum vadium,, and known as a Welsh mortgage, is 
still recognized in England, though it has almost become obsolete, 
under which the mortgagee enters and occupies, taking the rents as 
an equivalent for the interest of the money loaned. The mortgagee 



' Coote on Mortgages, 5 '2 Bl. Com. 157; Coote on Mort- 

' Id. 5. gages, 10, II ; 2 Wash. R. P. 39 (3d ed.). 

* Id. 6 ' Coote on Mortgages, 10. 



§§ 6-7.] MORTGAGES AND THEIE NATtTEE. 5 

cannot enforce the payment of the debt or the redemption of the 
estate, neither can he foreclose it ; and, on the other hand, no matter 
how large the rents may be, they do not operate to reduce the amount 
of the claims against the property.' The distinguishing character- 
istics of a Welsh mortgage were that there was no proviso that the 
conveyance was to be void on payment of the debt, and there was no 
covenant, express or implied, for such payment. There was no right 
to sue for it, and the mortgagee had no remedy whatever therefor, 
because it admitted of no foreclosure. A contract such as this would 
doubtless be recognized under our system of law, but presumptions 
would be against it, and the ordinary remedies of foreclosure and 
redemption would apply if there was a covenant to pay and a right 
to sue.^ 

§ 6. The mortuum vadium or mortgage is, however, the stem 
from which the modern mortgage has sprung. It is thus described 
by Littleton : " " Item : if a feoffment be made upon such condition 
that if the feoffor pay to the feoffee at a certain day, etc., forty 
pounds of money, that then the feoffor may re-enter, etc. In this 
case the feoffor is called tenant in mortgage, which is as much as to 
say in French, coTnie mortgage, and in Latin, mortuum, vadium,. 
And it seemeth that the cause why it is called mortgage is, for that 
it is doubtful whether the feoffor wiU pay at the day limited, such 
sum or not ; and if he doth not pay, then the land which is put in 
pledge upon condition for the payment of the money is taken from 
him forever, and so dead to him upon condition, etc. ; and if he doth 
pay the money, then the pledge is dead as to the tenant," etc. The 
origin of the name has formed a subject for comment and dispute 
among writers. Blackstone and some others " follow Littleton ; but 
Mr. Ooote " and Mr. Williams ° prefer an exposition given by Gran- 
ville, and claim that an earlier form of the same security existed, by 
which the rents were received by the creditor in heu of interest, and 
the land thus becoming for the time being dead to the feoffor, the 
security was not inaptly termed a dead pledge. 

§ 7. The mortgage described by Littleton was strictly an es- 
tate upon condition. By force of it the title instantly vested in the 



' Coote on Mortgages, g ; Fisher on • 2 Bl. Com. 157 ; 2 Wash. R. P. 39 

Mortgages, 3 : 2 Wash. R. P. 39 (3d ed.). (3d ed.). 
8 O'Neil V. Gray, 39 Hun, 566, 568. ^ Coote on Mortgages, 10. 

' Sec. 332. ° Williams R. P. 352. 



6 MOETGAGES OF EEAL PEOPEETT. [§ 8. 

feoffee, subject to the condition ; if the condition were performed, 
the feoffor entered and was in possession of his old estate ; but if the 
condition were not faithfully complied with, the land was forever 
lost to the feoffor. Where the value of the estate conveyed was large 
in proportion to the debt, the harshness of such an agreement was 
manifest, but the common law knew of no better way to treat debtors 
than to make them live up to their bargains. It relented to the ex- 
tent of favoring the performance of the condition, and of restoring 
the debtor to his estate if the condition had been kept in its spirit, as 
nearly as it could be ; ' but otherwise the bargain was enforced accord- 
ing to its letter. Men who took usury and who obtained possession of 
estates by the oppressive enforcement of the conditions of mortgages, 
were reviled and abused, but the sturdy spirit of the common law 
refused to interfere between the unfortunate debtor and the conse- 
quences of his own act. 

§ 8. The equity of redemption. — Happily a jurisdiction was 
arising under which the harshness of the common law might be soft- 
ened without an actual interference with its principles, and a system 
might be established at once consistent with the security of the cred- 
itor, and with a due regard for the interests of- the debtor.' The 
court of chancery was presided over by men who had studied the en- 
lightened code of the Roman law, and as that court became powerful, 
the successive chancellors sought, by the introdiiction of new princi- 
ples, to moderate the severity with which the common law enforced 
the breach of the condition. They did not, indeed, make any at- 
tempt to alter the legal effect of the forfeiture at common law ; they 
could not, as they might have wished, in conformity with the princi- 
ples of the civil law, declare that the force of the conveyance should, 
notwithstanding forfeiture committed, cease at any time before sen- 
tence of foreclosure, on payment of the debt to secure which it was 
made ; but leaving the forfeiture to its legal consequences, they op- 
erated on the conscience of the mortgagee, and acting m personam 
and not m rem, they declared it unreasonable that he should retain 
for his own benefit what was " intended as a mere pledge." They 
adjudged that the breach of the condition was in the nature of a 
penalty, which ought to be relieved against, and that the mortgagor 
had an equity to redeem on payment of principal, interest, and costs, 
notwithstanding the forfeiture at law.' 

' Coote on Mortgages, 13. ^ Id. 17. ^ Id. 19. 



§ 9.] MORTGAaES AND THEIE NATURE. 7 

There is no record of the time when this equity was first granted. 
In the cases of Wade ' and OoodaU,^ which were decided toward the 
end of the reign of Queen EKzabeth, the parties do not seem to have 
entertained the idea of any remedy existing for the mortgagor's relief, 
if the forfeiture was estabhshed at law, although Tothill mentions a 
case in the thirty-seventh year of Elizabeth's reign,' in which the 
equity was decreed, and it must soon after this time have been gen- 
erally recognized, for there is a case decided in the first year of 
Charles the First,* in which the doctrine seems fully admitted. In 
the intermediate reign of King James the First, the courts of equity 
became established in power, and the same period may reasonably be 
assigned as that in which the doctrine of equity of redemption was 
fully recognized.' 

§ 9. Once a mortgage, always a mortgage. — No sooner, 
however, was this equitable principle established than the cupidity of 
creditors induced them to attempt its evasion, and it was a bold but 
necessary decision of equity that the debtor could not, even by the 
most solemn engagements entered into at the time of the loan, pre- 
clude himself from his right to redeem. It required all the firmness 
and wisdom of the eminent judges who successively presided in the 
courts of equity to prevent this equitable jurisdiction being nullified 
by the artifice of the parties. But those courts, looking always at 
the intent and not at the form of things, disregarded all the defenses 
by which the creditor surrounded himself, and laid it down as a plain 
and un deviating rule that it was inequitable that a creditor should 
obtain a collateral or additional advantage through the necessities of 
his debtor, beyond the payment of principal, interest, and costs. 
They established as principles not to be departed from, that " once a 
mortgage, always a mortgage"; that an estate could not at one time 
be a mortgage and at another time cease to be so, by one and the 
same deed ; that a mortgage could no more be irredeemable than a 
distress irrepleviable; that the law will control even an express 
agreement of the parties, and, by the same reason, equity wiU let a 
man loose from his agreement, and even against his agreement admit 
him to redeem a mortgage; and that whatever clause or covenant 
there may be in a conveyance, yet if, upon the whole, it appears to 



' 5 Coke, 115. ' Id. 96. Chancery, 10 ; see also How v. Vigures, 

3 Langford v. Barnard, Tothill, 134. Id. 32. 

* Emanuel College v. Evans, i Rep. in ' Coote on Mortgages, 20. 



8 MORTGAGES OP REAL PROPERTY. [§ 10. 

have been the intention of the parties that such conveyance shall 
only be a mortgage, or pass a redeemable estate, a court of equity will 
always construe it so.^ 

§ 10. Rights of mortgagor and mortgagee at law and in 
equity. — Against the introduction of the novel theory of an equity 
of redemption, the judges of the courts of common law strenu- 
ously opposed themselves ; and, though ultimately defeated by the 
increasing power of the court of chancery, they nevertheless, in their 
own courts, still adhered to the rigid doctrine of forfeiture. The rights 
of the mortgagor and the mortgagee were, therefore, very different 
in the courts of law from what they were in the courts of equity. 

At law, the mortgagee was treated as being the legal owner, his 
estate was devisable and descended to his heirs, and he might, after 
condition broken, oust the mortgagor by an action of ejectment. In 
equity, the rights of the mortgagee descended to his personal repre- 
sentatives, and the mortgagor was treated as the real owner of the 
land. Even after the courts of law had recognized the title of the 
mortgagee as absolute, and had put him into possession, the courts of 
equity enforced what was termed the mortgagor's right in equity of 
redemption. 

These contradictory and conflicting rulings gave rise to some con- 
fusion, more especially while the courts of common law continued to 
be presided over by men whose early training had led them to regard 
the interference of the courts of equity as an offensive innovation ; 
but, in the course of time, the rules of equity so commended them- 
selves to the sense of justice of all men, and the power of the chan- 
cellors was so vigorously wielded, that the right of a mortgagor, after 
forfeiture, to redeem by apphcation to equity, was recognized even in 
the courts of law as a well-defined estate, and was known as an equity 
of redemption. The mortgagee was, indeed, treated in some respects 
as the legal ovsmer, and could maintain ejectment against the mort- 
gagor, and had other legal remedies as such, but all these legal rights 
were held by him subject to the equity of redemption of the mort- 
gagor imtil, by a decree of the court of chancery, such equity of re- 
demption had been foreclosed. Inasmuch as the legal rights of the 
mortgagee could only be used to enforce the payment of the debt 
which the mortgage was made to secure, the mortgagee could not be 



' Coote on Mortgages, 22 ; Lawrence N. Y. (3 Kern.) 2og ; Henry v. Davis, 7 
V. The Farmers' Loan and Trust Co. 13 Johns. Ch. 42. 



§§ 11-12.] MOEXaAGES AND THEIE NATURE. 9 

said by anything more than the shallowest land of a fiction, to be the 
owner of the estate, and the judges of the courts of law came, in the 
course of time, to realize the absurdity of such a proposition. 

§ 11. Early cases. — The case of Martin v. Mowlin (2 Burr. 
978), decided by the English King's Bench in 1Y60, illustrates how 
reasonable a doctrine then prevailed in the courts of law. It was 
there held that whatever words in a will would carry the money due 
on a mortgage, would carry the interest in the land. Lord Mans- 
field said : " A mortgage is a charge upon the land, and whatever 
would give the money would carry the estate in the land along with 
it. The estate in the land is the same thing as the money due upon 
it. It will be Hable to debts, it will go to the executor, it will pass 
by a will not made and executed with the solemnities required by the 
statute of frauds. The assignment of the debt or forgiving it will 
draw the land after it as a consequence ; nay, it would do it though 
the debt were forgiven only by parol." 

So, in King v. St. Michaels (Doug. 632), it was remarked by the 
same judge, that " a mortgagor in possession gains a settlement be- 
cause the mortgagee, notwithstanding the form, has but a chattel 
and the mortgage is only a security. It is an affront to common 
sense to say that the mortgagor is not the real owner." 

It will be observed that the doctrine of an equity of redemption 
was originated by the courts of equity, and that it became part of the 
law of England because of its own reasonableness, and without the 
sanction of legislative enactment.' 

The case of mortgages is, indeed, as has been remarked by Chan- 
cellor Kent, " one of the most splendid instances in the historv of 
our jurisprudence of the triumph of equitable principles over tech- 
nical rules, and the homage which those principles have received by 
their adoption in the courts of law." ^ 

§ 13. Definition of a mortgage. — A mortgage at common 
law has been defined to be " an absolute pledge, to become an abso- 



' Blackstone says that " the inconven- what had long been the practice of courts 

ience as well as the injustice of putting of equity, should also for the future be 

different constructions in different courts universally followed in the courts of law, 

upon one and the same transaction wherein it had before these statutes in 

obliged the parliament at length to inter- some degree obtained a footing." 3 Bl. 

fere, and to direct, by the statutes 4 and Com. 435. 

5 Anne, c. 16, and 7 Geo. II., c. 20, that ^4 Kent's Com. 158. 
in the cases of bonds and mortgages. 



10 MOETGAGES OP EEAL PEOPEKTT. [§ 13. 

lute interest, if not redeemed at a certain time," ' and again as " a 
conveyance absolute in its form, but intended to secure the perform- 
ance of some act, such as the payment of money and the like, by the 
grantor or some other person, and to become void if the act is per- 
formed agreeably to the terms prescribed at the time of making such 
conveyance," ^ and still again as " a conveyance of lands by a debtor 
to his creditor, as a pledge or security for the repayment of a sum 
of money borrowed ; with a proviso that such conveyance shall be 
void on payment of the money borrowed within or on a certain 
day." ' 

But neither of these definitions is broad enough to include all of 
the contracts which at this day would be treated as mortgages. A 
modern mortgage has been defined to be " a debt by specialty secured 
by a pledge of lands, of which the legal ownership is vested in the 
creditor, but of which, in equity, the debtor and those claiming under 
him remain the actual owners, until debarred by judicial sentence, 
by legislative enactment, or their own laches," ' but it has been much 
more accurately described as " any conveyance of lands intended by 
the parties at the time of making it to be a security for the payment 
of money or the doing of some prescribed act." ' 

§ 13. Not necessary that the grant be executed by person 
to be treated as mortgagor. — To constitute a mortgage only two 
things are necessary : a conveyance of property and a contemporane- 
ous agreement that such conveyance shall be a security. It is not 
material that the conveyance should be made by the debtor or by the 
person in whom the equity of redemption will exist. It is sufficient 
if the debtor, and he who claims to occupy the position of mortgagor 
with the right of redemption, has an interest, legal or equitable, in 
the premises, and that the grantee of the legal estate had and acquired 
such title by the act and assent of the debtor, and as security for his 
debt." 

Where the grantee only advances a portion of the purchase price 
in order to assist a person having a contract of purchase, who ad- 
vances the remainder, and where the title is taken in the name of the 
grantee, but as security merely for the amount of his advances, the 



' I Powell on Mortgages, 7. " 2 Wash. R. P. 43. 

2 2 Wash. R. P. (3d ed.), 36. "^ " Carr v. Carr, 52 N. Y. 251 ; s. c. 4 

*2 Greenl. Cruise, 79. Lans. 314. See Loomis v. Loomis, 60 

* Coote on Mortgages, 139. Barb. 22. 



§ 13. j MOETGAGES AKD THEIE NATUEE. 11 

person who incurred the debt is the equitable owner, and courts of 
equity find no difficulty in clothing him with all the rights of a mort- 
gagor.^ And even if the debtor do not advance any part of the pur- 
chase money, if he is instrumental in procuring the title to be placed 
in the grantee, or if third persons, for his benefit, do or abstain from 
doing anything toward this end, and the property is received by the 
grantee because of the action of the debtor or his friends, and upon 
an agreement to hold it as security, he acqxiires no higher rights than 
those of a mortgagee. In an early case, where property was pur- 
chased at a foreclosure sale for less than the amount of the debt, and 
for much less than its value, the owner of the mortgage which was 
foreclosed, the owner of the equity and all other bidders having been 
induced to refrain from bidding, because the purchaser represented 
that he was acting in the interest of the owner, this rule was apphed," 
and it has since been affirmed and enforced.' So, too, where the 
grantee receives the conveyance from any third person through the 
efforts of his debtor, and as security for the debt, the transaction is a 
mortgage, and the right of redemption will vest either in the grantor 
or the debtor, as the special equities of the case may require.' And 
where one loaned money to a judgment debtor to satisfy a judgment, 
and by parol agreement took the sheriff's deed on execution as secur- 
ity, it was held that his rights were those of a mortgagee only.' 

In some of the cases cited, the right to redeem is placed upon the 
ground that it would be a fraud on the part of the grantee to hold as 
his own what he acquired merely as security, and that a court of 
equity will provide relief by declaring the grantee a trustee for the 
person defrauded. In all of them, however, the right of redemption 
is declared to exist, and it would be difficult to distinguish the rights 



' Carr v. Carr, 52 N. Y. 251 ; Stoddard St. 65 ; Logue's Appeal, 104 Pa. St. 136 ; 

V. Whiting, 46 N. Y. 627 ; McBurney v. Life Ins. Co. v. Slee, no 111. 35 ; Ins. 

Wellman, 42 Barb. 390 ; s. c. sub nom. Co. v. White, 106 111. 67 ; Davis v. Dres- 

Dodge V. Wellman, 43 How. 427 ; Tibbs back, 81 111. 393. 

V. Morris, 44 Barb. 138 ; Sahler v. Sig- ■* Weed v. Stevenson, Clarke, 166 ; 

ner, 37 Id, 329 ; s. c. 44 Id. 606 ; Brown Stoddard v. Whiting, 46 N. Y. 627 ; He- 

V. Jones, 46 Id. 400 ; Umfreville v. mans v. Lucy, i N. Y. Sup. (T. & C.) 

Keeler, i N. Y. Sup. (T. & C.) 486 ; He- 523 ; Wright v. Shumway, i Biss. 23 ; 

mans v. Lucy, Id. 523 ; Carey v. Raw- Hoile v. Bailey, 58 Wis. 434 ; Shillaber 

son, 8 Mass. 159. v. Robinson-, 97 U. S. 68. 

2 Browii v. Lynch, i Paige, 147. ' Beatty v. Brummett, 94 Ind. 76 ; 

"* ' Ryan v. Dox, 34 N. Y. 307, and cases Smith v. Brand, 64 Ind. 427 ; Butcher v. 

cited. See also Pensineau v. Pulliman, Stultz, 60 In.d. 170 ; Hay worth v. Worth- 

47 111. 58 ; Danzeisen's Appeal, 73 Pa. ington, 5 Black. 361 ; 35 Am. Dec. 126. 



12 MOETGAGES OF EBAL PEOPEKTY. [§§ 14-15. 

of a debtor whose debt was secured by a transfer of property to which 
he was equitably entitled, by a third person to his creditor, from the 
rights always conceded to mortgagees. It is a matter of small im- 
portance whether we say that the debtor is a cestui que trust holding 
the rights of a mortgagor, or whether we declare him to be, in fact, 
a mortgagor. 

§ 14. Personal obligation to pay not a necessary ele- 
ment. — Tt is not an essential element in a mortgage, that the debt or 
obligation which it secures shall be capable of enforcement, other- 
wise than as a lien upon the land. It is provided by statute, that 
" no mortgage shall be construed as implying a covenant for the pay- 
ment of the sum intended to be secured ; and when there shall be no 
express covenant contained in the mortgage, and no bond or other 
separate instrument, to secure such payment, shall have been given, 
the remedies of the mortgagee shall be confined to the lands men- 
tioned in the mortgage." ' Under this statute it was held that an 
absolute deed intended as security was a mortgage without any per- 
sonal responsibility to pay the debt on the part of the mortgagor," 
and such a security will pass by a mere assignment of the interest in 
the land." So, too, a mortgage under seal may be enforced after the 
debt which it secures, it being by parol, has been barred by the 
statute of Limitations." 

§ 15. Form of agreement for redemption not material. 

— The form in which the contract is expressed is of no import- 
ance, if it can be made to appear that the transfer was by way of 
security. It may be in the form of a conveyance, upon express 
trusts," or of a conveyance upon condition, as at common law, or of a 
grant with a covenant to reconvey.° 

In that portion of the Revised Statutes which treats of the record- 
ing of deeds, it is enacted that " every deed conveying real estate, 
which, by any other instrument in writing, shall appear to have been 



' I R. S. 738, § 139. transaction as a conditional sale ; Hill- 
'^ Hone V. Fisher, 2 Barb. Ch. 559; house v. Dunning, 7 Conn. 143. 
Gaylord v. Knapp, 15 Hun, 87 ; see also ^ Severance v. Griffith, 2 Lans. 38. 
Rice V. Rice, 4 Pick. 349 ; Wharf v. * Pratt v. Huggins, 29 Barb. 277. 
Howell, 5 Binn. 499 ; but when three ' Farmers' Loan and Trust Co. v. Car- 
years were given to repurchase and there roll, 5 Barb. 613 ; Lawrence v. The 
was no covenant to pay, this was held. Farmers' Loan and Trust Co. 13 N. Y. 
with other circumstances, to establish the (3 Kern.) 200. 

° Peterson v. Clark, 15 Johns. 205. 



§ 16. J MOETGA.GES AND THEIE NATUEE. 13 

intended only as a security in the nature of a mortgage, though it be 
an absolute conveyance in terms, shall be considered as a mortgage," '■ 
but this was only declaratory of the law, and an absolute transfer will 
be treated as a mortgage if it can be shown to have been intended by 
the parties to it as a security.'' 

§ 16. Agreement for redemption must enter into origi- 
nal contract. — The intent that the transfer shall operate as a 
security must enter into the original contract. It is a maxim 
of equity that " once a mortgage, always a mortgage "; but it 
is no less true that an absolute and unqualified conveyance cannot 
become a mortgage by subsequent agreement.' The fact that the 
conveyance was originally intended as security may be proved by 
any competent testimony. The conveyance may be under seal, and 
the defeasance or evidence of the right to redeem may be in a sepa- 
rate instrument,* and it may consist of a simple admission of the 
grantee, without a seal, and bearing a date subsequent to the con- 
veyance.'* But permitting the defeasance to bear a later date than 
the grant concerns the question of evidence only, and a conveyance 
intended at the time to transfer the absolute title to the grantee 
cannot be converted into a mortgage by any subsequent agreement 
between the parties." 

' I R. S. 756, § 3. , Ind. 281 ; Benton v. NicoU, 24 Mich. 

^ Lane v. Shears, i Wend. 433 ; Brown 221 ; Cooper v. Brook, 41 Mich. 4S8 ; 

V. Dean, 3 Id. 208 ; Palmer v. Guern- Coles v. Marble, 37 Mich. 158 ; Parsell 

sey, 7 Id. 248 ; Roach v. Cosine, 9 Id. v. Thayer, 39 Mich. 467 ; Klinck v. 

227 ; Weed v. Stevenson, i Clark, 166 ; Price, 4 W. Va. 4 ; 6 Am. Rep. 268 ; 

Walcott V. Morris, i Murphy (N. C.) 116 ; Beale v. Ryan. 40 Tex. 399. 

3 Am. Dec. 678 ; French v. Burns, 35 ^ Sturtevant v. Sturtevant, 20 N. Y. 39 ; 

Conn. 359 ; Shays v. Norton, 48 III. 100 ; Barrett v. Carter, 3 Lans. 58. 

Turner v. Kerr, 44 Mo. 429 ; Phillips v. ' Elliott v. Wood, 53 Barb. 285 ; Clark 

Hulsizer, 20 N. J. Eq. 308 ; Vliet v. v. Lyon, 46 Ga. 202. 

Young, 34 N. J. Eq. 15 ; Crane v. De ^Dey v. Dunham, 2 Johns. Ch. 182 ; 

Camp, 21 N. J. Eq. 414 ; Cannon v. Gubbins v. Harper, 7 Phila. (Pa.) 276 ; 

McNab, 48 Ala. 99 ; Territory of Utahv. Harrison v. Phillips Academy, 12 Mass. 

Golding, 3 Utah, 39 ; Pearce v. Wilson, 456 ; Newhall v. Burt, 7 Pick. 157 ; Lit- 

III Pa. St. T4 ; Colwell v. Woods, 3 tlewort v. Davis, 50 Miss. 403 ; Weide 

Watts (Pa.; 188; 27 Am. Dec. 345; v. Gehl, 21 Minn. 449 ; O'Neilv. Capelle, 

Harper's Appeal, 64 Pa. St. 315 ; Over- 62 Mo. 202. 

street v. Baxter, 30 Kans. 55 ; Endel v. ' Payne v. Patterson, 77 Pa. St. 134 ; 

Walls, 16 Fla. 786; Steel v. Steel, 86 Hall v. Jewell, 7 Greenleaf, 435; 22 Am. 

Mass. (4 Allen) 417 ; Campbell v. Dear- Dec. 212 ; Bennock v. Whipple, 12 Me. 

born, 109 Mass. 130 ; 12 Am. Rep. 171 ; 346 ; 28 Am. Dec. i86 ; Stowe v. Mer- 

Goddard v. Coe, 55 Me 385 ; Lewis v. rill, 77 Me. 550. 
Small, 71 Me. 552 ; Love v. Blair, 72 



14 



MORTGAGES OF EEAE PKOPEKTT. 



[§§ 17-18. 



§ 17. Trust deeds. — In some States a security in the form of a 
grant to a third person, as a trustee with authority to sell and satisfy 
the debt, and reserving the estate to the grantor on payment, is used 
instead of the ordinary mortgage commonly approved here. These 
trust deeds are mortgages and are governed by the same rules.* 

§ 18. It is not requisite that the defeasance should be in 
writing. — ^In the State of J^ew York, whatever the rule may be else- 
where, a conveyance under seal, absolute upon its face, may be shown 
by parol to have been intended as a security, and to be in reality a 
mortgage. The earlier cases proceeded upon the ground that it was 
a fraud on the part of a grantee to attempt to convert a mortgage 
into an absolute sale," but the later authorities go so far as to say that 
fraud or mistake in the preparation or form of the instrument is not 
an essential element in an action for relief, and to give effect to the 
intention of the parties.^ The courts of this State are fully committed 
to the doctrine, and it is too firmly established to admit of discussion." 

The same rule also prevails in other States, and upon no point are 
the authorities more harmonious than that a deed, absolute upon its 
face, may be shown by parol to have been intended as a mere secur- 
ity and to be a mortgage.' 



' Union Co. v. Sprague, 14 R. I. 452 ; 
Austin V. Sprague Mfg. Co., 14 R. I. 
464 ; Hoffman v. Mackall, 5 Oliio St. 
124 ; Cliafee v. Fourth Nat. Bank, 71 
Me. 514 ; DeWolf v. Sprague Mfg. Co., 
49 Conn. 282 ; Stafford Nat. Bank v. 
Sprague, 17 Fed. Rep. 784 ; Martin v. 
Alter, 42 Ohio St. 94 ; Woodruff v. Robb, 
ig Ohio St. 217 ; State Bank of Bay City 
V. Chappelle, 40 Mich. 447 ; McDonald 
& Co. V. Kellogg, 30 Kans. 170 ; Glynn 
V. Building Ass'n, 22 Kans. 746 ; Lenox 
V. Reed, 12 Kans. 227 ; Bennett v. Wol- 
verton, 24 Kans. 284 ; Fox, adm'r, v. 
Fraser, 92 Ind. 265 ; Yaryan v. Shriner, 
26 Ind. 364 ; Mattix v. Weand, 19 Ind. 
151 ; Dibblee v. Mitchell, 15 Ind. 435 ;. 
Fitch V. Wetherbee, no 111. 475 ; Lance's 
Appeal, 112 Pa. St. 456 ; Camden v. Al- 
kire, 24 W. Va. 674 ; Dodd v. Neilson, 
90 N. Y. 243. 

^ Strong V. Stewart, 4 Johns. Ch. 167. 

2 Horn V. Keteltas, 46 N. Y. 605 ; s. c. 
42 How. 138. 



* Marks v. Pell, i Johns. Ch. 594; 
Strong V. Stewart, 4 Id. 167 ; James v. 
Johnson, 6 Id. 417 ; Clark v. Henry, 2 
Cow. 324 ; Whittick v. Kane, I Paige, 
206; Slee V. Manhattan Co., I Id. 48 ; 
Van Buren v. Olmstead, 5 Id. 9 ; Holmes 
V. Grant, 8 Id. 243 ; Robinson v. Crop- 
sey, 2 Edw. Ch. 138 ; affi'd 6 Paige, 480 ; 
Mclntyre v. Humphreys, Hoff. 31 ; Hall 
V. Van Cleve, 11 N. Y. Leg. Obs. 281 ; 
Brown v. Dewey, i Sand. Ch. 57 ; Ryan 
V. Dox, 25 Barb. 440 ; McBurney v. 
Wellman, 42 Barb. 390 ; Tibbs v. Mor- 
ris, 44 Id. 138 ; Murray v. Walker, 31 
N. Y. 399 ; Mulford v. MuUer, I Keyes, 
31 ; Van Dusen v. Worrell, 3 Id. 311 ; 
Hodges V. The Tennessee Marine and 
Fire Insurance Co., 6 N. Y. (4 Seld.) 416 ; 
Horn V. Keteltas, 46 N. Y. 605 ; s. c. 42 
How. 138 ; Despard v. Walbridge, 15 N. 
Y. (i Smith) 374 ; Brown v. Clifford, 7 
Lans. 46. 

' Perkins v. West, 55 Vt. 265 ; Hills v. 
Loomis, 42 Vt. 562 ; Warfield v. Fisk, 



§19.] 



MORTGAGES AND THEIR NATURE. 



15 



A deed may be shown to be a mortgage and void for usury."^ And 
a lease may be shown by parol to be a mortgage '' and usurious." 

§ 19. Burden of proof to establish parol defeasance. — But 

while parol evidence is admissible to show that a deed, absolute upon 
its face, was intended as a mortgage, the presumption is, that the 
writing expresses the true contract between the parties, and the 
agreement for redemption must be clearly made out by a preponder- 
ance of proof." The evidence must be as clear and cogent as that 
required to reform a deed." 

Where the indebtedness from the grantor to the grantee is recited 
as a consideration for the conveyance, this is a strong indication that 
an absolute transfer was intended." 

The circumstance that the grantor continues in possession imports 
that the deed is a security and not a sale ; ' but this presumption will 
be rebutted if it also appears that the vendor agreed to pay rent." 



136 Mass. 219 ; Hassam v. Barrett, 115 
Mass. 256 ; Peugh v. Davis, 2 Mac- 
Arthur (D. C.) 14 ; Hubbard v. Stetson, 
3 MacArthur (D. C.) 113 ; Davis v. East- 
ham, 81 Ky. 116; Herron V. Herron, gi 
Ind. 278 ; Sibbett v. Stryker, 62 Ind. 41 ; 
•Eames v. Hardin, iii 111. 634 ; Insur- 
ance Co. V. White, 106 111. 67 ; Bailey v. 
Bailey, 115 111. 551 ; Wright v. Gay, loi 
111. 233 ; Walls V. Endel, 20 Fla. 86 ; 
King V. Warrington, 2 N. Mex. 318 ; 
Kent V. Agard, 24 Wis. 378 ; Brick v. 
Brick, 98 U. S. (8 Otto) 514 ; Jackson v. 
Lav^rrence, (U. S. Sup.) 33 Alb. L. J. 436 ; 
Saunders v. Stewart, 7 Nev. 200 ; Taylor 
V. McLain, 64Cal. 513 ; Combs v. Hawes, 
8 Pacif. Rep. (Cal.) 597 ; Turner v. 
Wilkinson, 72 Ala. 361 ; Lyon v. Powell, 
78 Ala. 351 ; Miller V. Ansenig, 2 Wash. 
T. 22 ; Hill.v. Linn, 5 Pacif. Rep. (Colo.) 
641; Zane v. Fink, 18 W. Va. 694; 
Moore v. Madden, 7 Ark. 530 ; 46 Am. 
Dec. 298 ; Phillips v. Hulsizer, 20 N. J. 
Eq. 308. In New Hampshire a convey- 
ance absolute on its face with a secret 
agreement to reconvey on payment of a 
certain sum, is void as to the creditors of 
the grancor, though no fraud was in- 
tended ; Stratton v. Putney, 63 N. H. 

577- 

' Fiedler v. Darrin, 50 N. Y. 437. 



^ Lawson v. Moffatt, (Wis.) 31 Alb. L. 

J- 275- 

^ People ex rel. Ainslee v. Hewlett, 13 
Hun, 138, 

* Marks v. Pell, i Johns. Ch. 599 ; 
Holmes v. Grant, 8 Paige, 243-255 ; Cad- 
man v. Peter, (U. S. Sup. Ct.) 6 Sup. 
Ct. Rep. 957 ; 33 Alb. L. J. 455 ; How- 
land v. Blake, 97 U. S. 624 ; Coyle v. 
Davis, 116 U. S. 108 ; Haines v. Thomp- 
son, 70 Penna. St. 434 ; Case v. Peters, 20 
Mich. 298, 303 ; Tilden v. Streeter, 45 
Mich. 533, 539 ; Bentley v. O'Brien, iii 
111. 53 ; Price v. Kames, 59 111. 276 ; 
Shays v. Norton, 48 111. 100 ; Hancock v. 
Harper, 86 III. 445 ; Turner v. Wilkin- 
son, 72 Ala. 361 ; Parks v. Parks, 66 
Ala. 326 ; Marsh v. Marsh, 74 Ala. 418 ; 
Phillips V. Croft, 42 Ala. 477 ; Danner 
Land & Lumber Co. v. Ins. Co., 77 Ala. 
184 ; Matthews v. Porter, 16 Fla. 466 ; 
Albany, etc., Co. v. Crawford, 11 Oreg. 
243 ; Adams v. Adams, 51 Conn. 544 ; 
Allen V. Fogg, 66 Iowa, 229 ; Edwards 
V. Wall, 79 Va. 321. 

^ Kent V. Lasley, 24 Wis. 654. 

" Eckford v. DeKay, 26 Wend. 29 ; 
Brown v. Dewey, 2 Barb. 28. 

' Wright v. Bates, 13 Verm. 341. 

" Danner Land Co., etc., v. Ins. Co., 77 
Ala. 184. 



16 MORTGAGES OF REAL PEOPEETT. [§§ 20-32. 

And if the grantee went into possession and made valuable improve- 
ments, this will strengthen the presumption that the absolute trans- 
fer is what it purports to be.' 

The question whether a conveyance is a mortgage is a mixed ques- 
tion of law and fact, and is to be determined in the light of all the 
surrounding circumstances." 

§ 20. Pleading. — In order that parol evidence shall be admissi- 
ble to show that a conveyance is given as security merely for an in- 
debtedness of the grantor to the grantee, the pleadings should be so 
framed as to charge that fact, and this cannot be done without an 
admission, in some form, that an indebtedness once existed or was 
contemplated. It has never been held that a deed can be so far con- 
tradicted by parol as to show that it was not intended to operate at 
all, or that it was the intention or agreement of the parties that the 
grantee should acquire no rights whatever under it, or that he should 
reconvey to the grantor, on his request, without any consideration.' 
In an action by a judgment creditor to set aside a conveyance as 
fraudulent, the conveyance may be declared to be a security, but this 
cannot be done without appropriate allegations.' 

§ 21. Sale to bona fide purchaser. — ^When an absolute con- 
veyance is given as security for a loan of money, the relation between 
the grantee and grantor is that of mortgagor and mortgagee ; but third 
persons, without knowledge of the secret defeasance, may deal with 
the grantee as if he were the real owner, and a iona fids purchaser 
from him will be fully protected." But if the purchaser from the 
grantee has notice of the defeasible nature of the title, he will acquire 
only the rights of an assignee of the mortgage." 

The actual occupancy of the grantor is notice of his equity to a 
purchaser from the grantee.' 

§ 22. Remedy against mortgagee for selling property. — 

A grantee under a conveyance absolute in form, but which can be 
shown to be intended as a security, who destroys the equitable right of 



' Woodworth v. Carman, 43 Iowa, 504. Loomis, 42 Vt. 562 ; Pico v. Gallardo, 52 

' Brown v. Clifford, 7 Lans. 46. Cal. 206 ; Frink v. Adams, 36 N. J. Eq. 

2 Hutchins v. Hutchins, 98 N. Y. 56,63. 485 ; Turner v. Wilkinson, 72 Ala. 361 ; 

*Van Wyckv. Baker, 16 Hun, 168, re- Weide v. Gehl, 21 Minn. 449. 

versing 10 Hun, 39. " Berdell v. Berdell, 20 W. Dig. 81. 

" Meehan v. Forrester, 52 N. Y. 277 ; ' New v. Wheaton, 24 Minn. 406 ; 

Wliittick V. Kane, i Paige, 202 ; West- Brown v. Gaffney, 28 111. 149 ; contra 

fall V. Westfall, 16 Hun, 541 ; Hills v. Pico v. Gallardo, 52 Cal. 206. 



§ 22.] MORTGAGES AND THEIR NATTJEE. 17 

the grantor to redeem by a conveyance to a hona fide purchaser, is 
guilty of a conversion of the land, and may be held to account to the 
owner of the title for the amount of the proceeds of the sale received 
by him over and above the amount of his lien. It will be no defense 
to him to show that the price which he received was in excess of the 
market value of the property.' And if part of the purchase money 
received by him was secured by a purchase-money mortgage, he may 
be charged with the amount of money represented by the mortgage 
as so much cash in hand.' 

The equitable owner of the land may in such a case at his election 
require an accounting either for the proceeds of the sale of the land, 
or its value at the time when bis right to such reparation is estab- 
lished.' In one case Chancellor Kent preferred the time of the com- 
mencement of the suit as the period at which the value should be 
ascertained ; ' but all the cases concede that the plaintiff is not hm- 
ited to the proceeds of the wrongful disposition. ° 

It has been held that in such an action the defendant is entitled to 
a credit for his reasonable charges for effecting the sale.' He is also 
entitled to be credited with any sum properly paid for purchasing an 
outstandiug title.' In other respects the accounting between the 
parties as to rents received and disbursements made, is controlled by 
the principles applicable to accountings with mortgagors who have 
been in possession. 

If the absolute conveyance has been made upon an agreement that 
the grantee is to sell the land for the payment of his debt, he can be 
held to account for nothing more than the proceeds received by him ; 
and such accounting must be made with the person who, pursuant to 
the agreement, is to receive the balance. If such balance was agreed 
to be paid to a creditor of the grantor, that creditor may maintain the 
action.' 

The action to compel a grantee of land under a conveyance intend- 
ed as security to account for its proceeds or value after a sale to a 
l)(ma fide purchaser, may be maintained by any person having an in- 



' Budd V. Van Orden, 33 N. J. Eq. ' Meehan v. Forrester, 52 N. Y. 277, 

143. 281 ; Peabody v. Tarbell, 2 Cush. 227, 

''Van Orden v. Budd, 33 N. J. Eq. 233 ; May v. LeClair, ii Wall, 236. 

564. * Van Dusen v. Worrell, 4 Abb. App. 

5 Meehan v. Forrester, 52 N. Y. 277, Dec. 473 ; 36 How. 286. 

281 ; Enos V. Sutherland, 11 Mich. 338. 'Atkins v. Lewis, 5 Oreg. 292. 

* Hart V. Ten Eyck, 2 Johns. Ch. 117. ° Raynor v. Lyons, 37 Cal. 452. 

2 



18 MORTGAGES OF EEAL PKOPEETT. [§ 23. 

terest in or a lien upon the equity of redemption. Thus a judgment 
creditor of the grantor may maintain the action, and if the sale was 
made after the death of the grantor, it may be brought by his heir 
or widow, biit not by his administrator.' It has been said that such 
an action will be barred by limitation at the end of six years," but 
under our statute it is believed that the ten years' limitation would 
apply. 

§ 23. Nature of the estate of the mortgagor. — ^In this State, 
as in most of the others, the mortgagor has, both at law and in equity, 
been regarded as the owner of the fee, and the mortgage has, for 
most purposes, been regarded as a mere security of a personal nature.' 
As against all persons but the mortgagee, the mortgagor is for all 
purposes the owner of the land,' and an outstanding mortgage will 
not even constitute a breach of covenant of seizin.' The interest of 
the mortgagor in the land, whether in or out of possession, may be 
sold upon execution, and it has even been held that the mortgagee in 
possession may procure such sale, and may himself become the 
purchaser.' 

A deed in the nature of a mortgage given by a tenant in com- 
mon upon his undivided interest in lands leaves in him an estate 
which entitles him to apply for partition.' The interest of the mort- 
gagor, after his death, passes to his heir, while that of the mortgagee 
passes to his administrator.' 

As between the mortgagor and mortgagee the estate of the morl> 
gagor is, somewhat inaccurately, termed the equity of redemption. 
Before forfeiture the right to redeem was a legal right, even at com- 



' Bowery Nat.- Bank v. Duncan, I2 Hildebrand, 46 Mo. 284 ; Asay v. Hoo- 

Hun, 405. ver, 5 Pa. St. 21 ; 45 Am. Dec. 713; 

* Hancock v. Harper, 86 111. 445. McHugh v. Smiley, 17 Neb. 620. 

' Waters V. Stewart, i Caines' Cas. 47 ; * Runyan v. Mersereau, ii Johns. 534 ; 

Jackson V. Willard, 4 Johns. 42 ; Runyan Hitchcock v. Harrington, 6 Id. 290; 5 

V. Mersereau, 11 Id. 534 ; Astor v. Mil- Am. Dec. 22g ; Coles v. Coles, 15 Id. 

ler, 2 Paige, 68 ; Astor V. Hoyt, 5 Wend, srg; Harp v. Calahan, 46 Cal. 222; 

603 ; Packer v. Rochester and Syracuse Lilly v. Dunn, adm'r, 96 Ind. 220. 

R. R., 17 N. Y. 283, 295 ; Kortrlght v. 'Sedgwick v. HoUenback, 7 Johns. 

Cady, 21 N. Y. 343 ; Power v. Lester, 376. 

23 N. Y. 527 ; Merritt v. Bartholick, 36 ' Trimra v. Marsh, 3 Lans. 309 ; s. c. 

N Y. 44 ; Gallatin County v. Beattie, 3 affi'd 54 N. Y. 599 ; Ten Eyck v. Craig, 

Montana, 173 ; Mack v. Wetzlar, 39 Cal. 5 N. Y. Sup. (T. & C.) 65 ; s. c. 2 Hun, 

247 ; Fletcher v. Holmes, 32 Ind. 497 ; 452 ; s. c. affi'd 62 N. Y. 406. 

Williams v. Beard, i S. C. 309 ; Carpen- ' Kline v. McGuckin, 24 N. J. Eq. 411. 

ter V. Bowen, 42 Miss. 28 ; Woods v. ' Bird v. Keller, 77 Me. 270. 



§ 24.J MOETGAGES AND THEIE NATXTKE. 19 

mon law, and at present tte right of the mortgagor to pay the mort- 
gage debt, and hold the estate discharged of the hen, is an inseparable 
incident to the relation of mortgagor and mortgagee, both at law and 
in equity, and it cannot be taken away without judicial sentence or a 
sale under a power or by the consent of the mortgagor, though the rem- 
edy for its enforcement may be barred by lapse of time, just as any 
other right may be forfeited by neglect. But while the right of re- 
demption is the most marked of the rights of the mortgagor as 
against the mortgagee, it is not the only one. The mortgagor is, for 
every purpose consistent with the validity of the mortgage as a lien, 
the legal owner of the estate, and, being in possession, he may main- 
tain trespass even against the mortgagee.' 

§ 24. Right of mortgagee as to possession. — At common law, 
and in this State prior to 1830, the mortgagee, after default, had a right 
to maintain ejectment against the mortgagor and all claiming under 
him to obtain possession of the mortgaged premises.' But this right 
was taken away from him by the Revised Statutes,' and the only 
right he now has in the land before foreclosure is to take pos- 
session of it, with the consent of the mortgagor, after the debt has 
become due and payable, and to retain such possession until the debt 
is paid.'' This right to retain possession is protected by the courts 
just as the similar right of the pledgee of personal property is pro- 
tected, but the mortgagee acquires no estate from his possession.' 
The possessory right continues only so long as the relation of debtor 
and creditor subsists, and when the debt is discharged, the right of 
possession ceases with it.° While the mortgagee cannot get into pos- 
session without the consent of the mortgagor, still, if* he gets into 
possession, he may defend his possession upon the title conveyed by 
the mortgage, and cannot be removed by an action of ejectment, 
but the only remedy is by an accounting in equity,' the title of the 

' Runyan v. Mersereau, ii Johns. 534 ; Colo. 32 ; Fogarty v. Sawyer, 17 Cal. 

6 Am. Dec. 393 ; Bryan v. Butts, 27 589 ; McMillan v. Richards, 9 Cal. 365 ; 

Barb. 503. Bostwick v. McEvoy, 62 Cal. 496 ;' Ty- 

* Jackson v. Dubois, 4 Johns. 216; ler v. Granger, 48 Cal. 259 ; Cox v. Rat- 

Erskine v. Townsend, 2 Mass. 493 ; Mc- cliffe, 105 Ind. 374. 
Millan v. Otis, 74 Ala. 561 ; Ferris v. * Waring v. Smyth, 2 Barb. Ch. 135. 
Houston, 74 Ala. 163 ; Coffey v. Hunt, ^ Packer v. The Rochester & Syracuse 

75 Ala. 236. R.R., 17 N. Y. 295. 

» 2 R. S. 312, § 57 ; Code of Civ. Pro. « Kortright v. Cady, 21 N. Y. 365 ; 

§ 1498 ; the same rule adopted in other Trimm v. Marsh, 54 N. Y. 606. 
States. Pueblo & A. V. R. Co. v. ' Hubbell v. Moulson, 53 N. Y. 225. 
Beshoas, 5 Pac. Rep. (Colo.) 639; 8 



20 MOETGAGES OF EEAL PEOPEETY. [§§ 25-26. 

mortgagee being sufficient to enable him to maintain his possession 
at law.' 

Ejectment wiU not lie in favor of a grantee Under an absolute deed 
given as security/ and such a deed does not deprive the grantor of 
the right to recover for the rents and profits of the land between the 
date of the deed and the reconveyance to him.' 

§ 25. A mortgagee is deemed a purchaser sub modo ; he is 

so regarded every day under the statute respecting fraudulent sales, 
and protected vrithin the saving clause in favor of subsequent pur- 
chasers in good faith,* and if he obtains his mortgage for a present 
and valuable consideration, he holds, to the extent that it may be 
necessary to protect his debt, all of the rights of a iona fide pur- 
chaser.* So, too, a mortgage is an estate for the purpose of entitling 
a mortgagee who had received a release from the mortgagor, to insist 
that, to the extent of the mortgage, the wife of the mortgagor could 
not claim dower." 

§ 26. A mortgage is a lien, and it is a mere shadow of the 
debt which it was made to secure. A transfer of the debt carries 
with it the mortgage, but a transfer of the mortgage without the debt 
is a nullity.' Before foreclosure the mortgagee has no interest in the 
land capable of being conveyed or mortgaged, for it is impossible to 
separate the debt from the pledge, so that the latter shall reside in 
one person, while the debt shall reside in another.' The interest of 
the, mortgagee in the land cannot be sold on execution, neither is he 
bound before entry, by a covenant running with the land." 

A mortgage is a lien, if it be nothing more, and a warranty against 
incumbrances will estop a grantor from 'setting up a mortgage as 
against his grantee, which existed at the time of the warranty." 

A mortgage under seal is a " deed " so as to permit an officer au- 



' Mickles v. Townsend, i8 N Y. 584, s. c. sub nam. James v. Morey, 2 Cow. 

and cases cited. 246 ; Whealan v. McCreary, 64 Ala. 

' Berdell v. Berdell, 33 Hun, 535 ; 319 ; Steadman v. Hayes, 80 Mo. 319. 

Beatty v. Brummett, 94 Ind. 76, and ° Van Duyne v. Thayre, 19 Wend. 162. 

cases cited ; Cox v. Ratcliife, 105 Ind. ' Merritt v. Bartholick, 36 N. Y. 44; 

374- Kellogg v. Smith, 26 N. Y. 18. 

° Haworth v. Taylor, 108 111. 275. 'Jackson v. Willard, 4 Johns. 41 ; Ay- 

■•Per Nelson, Ch. J., in Frisbee v. mar v. Bill, 5 Johns. Ch. 570. 

Thayer, 25 Wend. 399 ; Ledyard v. But- " Morris v. Mowatt, 2 Paige, 586 ; As- 

ler, 9 Paige, 137. tor v. Hoyt, 5 Wend. 603. 

' James v. Johnson, 6 Johns. Ch. 417 ; '° Mickles v. Townsend, 18 N. Y. 575. 



§§ 27-28.] MORTGAGES AND THEIR NATURE. 21 

thorized to take acknowledgments of deeds to certify as to its execu- 
tion." 

§ 27. After acquired title of mortgagor. — A mortgage is also 
treated as a conreyance when questions arise relative to the amount of 
interest upon which it is a charge/ or relative to the effect of the 
covenants contained in it. So a mortgage without covenants creates 
a lien only upon the interest of the mortgagor in the land at the time 
of its execution, and he is not estopped from showing what that was 
as against one claiming under the mortgage,' and he is not precluded 
from subsequently acquiring and claiming under an outstanding and 
paramount title.* But a warranty of title contained in a mortgage 
will estop the mortgagor from questioning that, at the date of the 
mortgage, he had title, and if he subsequently acquires the para- 
mount title, it wiU inure to the benefit of the mortgagee and his legal 
representatives. ' 

A mortgage, without covenants for title, will transfer all of the in- 
terests, both legal and equitable, of the mortgagor, and if the mort- 
gagor thereafter acquires a legal claim to what, at the time of execut- 
ing the mortgage, he had an equitable title, this will inure to the 
benefit of the mortgagee. Thus, where the owners of land fronting 
on a highway executed a mortgage thereon, intending to have the 
same bounded by the centre of the highway, but the description ex- 
tended only to the exterior line, and afterward a quit-claim deed to 
the centre of the highway was made to the mortgagor, it was held 
that this title inured to the benefit of the purchaser at a foreclosure 
sale under the mortgage.' 

Where a grantor takes a mortgage for part of the purchase money, 
the covenants for title operate only upon the estate derived from 
the mortgagee, and the mortgagor is not precluded from purchasing 
and setting up a hostile claim.' 

§ 28. Purchases at tax sales by mortgagee. — There is no 
such i-elation of trust between a mortgagor and a mortgagee, not in 



' Canandaigua Academy v. McKech- "Smyth v. Rowe, 33 Hun, 422. 

nie, 19 Hun, 62. ' Randall v. Lower, 98 Ind. 255 ; Brown 

' Hiscock V. Phelps, 49 N. Y. 97. v. Phillips, 40 Mich. 264 ; Haynes v. 

'National Fire Ins. Co. v. McKay, 5 Stevens, 11 N. H. 28 ; Smith v. Cannell, 

Abb. N. S. 445. 32 Me. 123 ; Hubbard v. Norton, 10 

* Jackson v. Littell, 56 N. Y. 108 ; Conn. 422 ; Sumner v. Barnard, 12 Mich. 

Power V. Lester, 23 N. Y. 532. 459 ; Connor v. Eddy, 25 Mo. 72 ; Lot 

^ Tefft V. Munsoi), 57 N. Y. 97. v. Thomas, 2 N. J. 407. 



22 MORTGAGES OF EEAL PEOPEETT. [§ 29. 

possession, as prevents the latter from acquiring an adverse claim or 
lien to or upon the mortgaged premises and enforcing the same with 
like effect as any stranger could. The mortgage is a mere security 
for a debt, and imposes no duty upon the mortgagee to protect the 
interests of the mortgagor, unless ther^ is some special covenant 
creating such a duty. The mortgagee, therefore, if he be not in 
possession, may purchase the mortgaged property at a sale for taxes, 
and may set up this title as against the mortgagor ;' the mortgagee 
may also acquire any other outstanding and hostile title, and set it 
up against the mortgagor, if nothing else than the relation of mort- 
gagor and mortgagee existing between the parties, prevents.' 

If the mortgagee elects to pay a tax imposed upon the mortgaged 
property for his own protection and that of the mortgagor, he may 
add the amount so paid to the mortgage indebtedness and collect it 
in his capacity of mortgagee, and the right to do this depends upon 
equitable principles alone, and not upon the presence of a " tax 
clause " or other stipulation in the mortgage.' But if he elects to 
assume the rights of a purchaser at a tax sale, he must proceed as any 
other similar purchaser would, and he will gain nothing from his 
position as mortgagee." Claiming as mortgagee to add the amount 
paid to his debt will operate as a waiver of the tax title.' 

A mortgagee in possession, who is receiving the rents of the 
property or enjoying its use, owes a duty to the mortgagor to 
apply those debts in paying taxes or other incumbrances prior to the 
mortgage, and, while he may demand a credit for such payments, 
he cannot allow the land to be sold for taxes in violation of his 
duty and set up against the mortgagor a tax title acquired while 
thus in possession." 

§ 29. Purchases at tax sales by mortgagor and those 
claiming under him. — As a general rule it may be said that a per- 
son who is under any obligation either moral or legal to pay a tax 
upon land cannot omit to pay such tax and then set up a purchase 

' Cornell v. Woodruff, 77 N. Y. 203, ' Sidenberg v. Ely^ 90 N. Y. 257 ; 43 

206 ; Williams v. Townsend, 31 N. Y. Amer. Rep. 163. See also infra Ch. 

415 ; Hill V. Hill, 4 Barb. 419 ; Bush v. VIII. 

■White, 85 Mo. 339 ; Waterson v. Devoe, * Williams v. Townsend, 31 N. Y. 411. 

18 Kan. 223 ; Bettison v. Budd, 17 Ark. ' Strong v. Burdick, 52 Iowa, 630. 

546 ; Summers v. Kanawha, 26 W. Va. ' Ten Eyck v. Craig, 62 N. Y. 406, 422 ; 

159 ; contm Hall v. Westcott (R. I.), 34 Schenck v. Kelley, 88 Ind. 444 ; Hall v. 

Alb. L. J. 227. Westcott (R. I.), 34 Alb. L. J. 227 ; Max- 

" Bush V. White, 85 Mo. 339. field v. Willey, 46 Mich. 252. 



§ 30.] MORTGAGES AND THEIR NATURE. 23 

under it.' A mortgagor cannot permit the estate to be sold for taxes, 
and by purchasing it on such sale acquire a title against the mortga- 
gee ; " the same rule will apply to a grantee of the mortgagor or to any 
other person claiming under the mortgagor who is in possession of 
the property.' 

A second mortgagee is under no obhgation to protect the lien of 
the first mortgagee by payment of the taxes or by purchasing the 
premises for his benefit at a tax sale ; but if he does pay or purchase, 
the act constitutes a protection to the first mortgagee, for the reasoa 
that his interest is in the equity of redemption and his rights rest 
upon those of the miortgagor. He may add the sum paid to his claim 
as against the mortgagor, but he cannot thus acquire a title superior 
to the prior lien.' And a person who obtains title throiigh the fore- 
closure of a second mortgage cannot gain any benefit as against the 
prior mortgagee either by paying taxes or by purchasing at a sale for 
taxes. ° 

§ 30. Purchase of equity of redemption by mortgagee. — A 
mortgagor and mortgagee may at any time after the creation of the 
mortgage and before foreclosure make any agreement concerning the 
estate they please, and the mortgagee may become the purchaser of 
the right of redemption. A transaction of that kind is, however, 
regarded with jealousy by courts of equity and will be avoided for 
fraud, actual or constructive, or for any unconscionable advantage 
taken by the mortgagee in obtaining it. It will be sustained only 
when honafide ; that is, when in all respects fair and for an adequate 
consideration." An agreement to waive or extinguish the right of 

' Moss V. Shear, 25 Cal. 38; Christy ^Connecticut Mut. L. Ins. Co. v. Bultee, 

V. Fisher, 58 Cal. 256. 45 Mich. 113 ; Middletown Savings Bank 

^ Dunn V. Snell, 74 Me. 22 ; Vamey v. v. Bacharach, 46 Conn. 513 ; Goodrich v. 

Stevens, 22 Me. 331 ; Downer v. Smith, Kimberly, 48 Conn. 395 ; Baker v. 

38 Vt. 464; Bush V. Cooper, 26 Miss. Whiting, 3 Sumner, 476 ; Gorton v. Paine, 

599 ; Fair v. Brown, 40 Iowa, 209 ; 18 Fla. 117 ; Phelan v. Boylan, 25 Wis. 

Cooper v. Jackson, 99 Ind. 566 ; Allison 679 ; Woodbury v. Swann, 59 N. H. 22 ; 

V. Armstrong, 28 Minn. 276 ; 41 Amer. Chickering v. Faile, 38 111. 342 ; Anson 

Rep. 281 ; Connecticut Mut. L. Ins. Co. v. Anson, 20 Iowa, 55. 

V. Bultee, 45 Mich. 113, 120 ; Fells v. ' Snoddy v. Leavitt, 105 Ind. 357 ; 

Barbour, 58 Mich. 49 ; Snoddy v. Leav- Cooper v. Jackson, 99 Ind. 566. 

itt, 105 Ind. 357. ' Odell v. Montross, 68 N. Y. 499, 504 ; 

' Travellers' Ins. Co. v. Patten, 98 Holridge v. Gillespie, 2 Johns. Ch. 30 ; 

Ind. 209 ; Cooper v. Jackson, 99 Ind. Trull v. Skinner, 17 Pick. 213 ; Patterson 

566 ; Morrison v. Bank of Commerce, v. Yeaton, 47 Me. 306 ; Ford v. Olden, 

81 Ind. 335 ; Fair v. Brown, 40 Iowa, 209; L. R. 3 Eq. Cas. 461 ; Jones v. Franks, 33 

Phinney v. Day, 76 Me. 83. Kans.497; Villa v.Rodriguez,79 U.S. 323. 



24 MORTGAGES OF KEAL PKOPEBTT. [§ 30. 

redemption cannot be made contemporaneously with the execution 
of the mortgage,' and if made afterward the burden of proof will 
rest upon the mortgagee to show its fairness." 

If a purchase is made by the mortgagee from the mortgagor the 
title of the mortgagor will only pass out of him by a deed under seal 
containing words of grant, and an agreement evidenced in any other 
way will not suffice, however just the bargain may be, even if the 
mortgage be in form an absolute conveyance.' 

The only other way to extinguish the mortgagor's right of redemp- 
tion is by foreclosure in one of the forms permitted by law. 



' Bearss v. Ford, io8 111. i6 ; Parmer ' Jones v. Franks, 33 Kans. 497. 
V. Parmer, 74 Ala. 285. ° Odell v. Montross, 68 N. Y. 499. 



CHAPTER II. 



CONDITIONAL SALES. 



§ 31. Conditional sales are valid. 

32. A mortgage and a conditional sale 

are in some respects quite sim- 
ilar. 

33. The chief and most obvious dis- 

tinction between a mortgage and 
a conditional sale. 

34. Absence of a covenant to pay 

debt is not conclusive. 

35. Remedies reserved by the con- 

tract. 



§ 36. 
37- 

38. 
39. 

40. 



Inadequacy of price. 

The subsequent dealings of the 
parties with relation to the trans- 
action. 

Each case must stand on its own 
special circumstances. 

The mere fact that a conveyance 
with an agreement to reconvey 
was recorded as a mortgage. 

Examples of conditional sales and 
mortgages. 



§ 31. Conditional sales are valid. — It is entirely competent for 
the grantor of an estate to require, as part of the consideration upon 
which he parts with his property, that the grantee shall agree to resell 
it to him within a certain time for a stipulated price. Such an agree- 
ment is not in any sense a mortgage, and there is no principle of law 
which forbids it from being made.^ To deny the power of two indi- 
viduals, capable of acting for themselves, to make a contract for the 
purchase and sale of lands, defeasible by the payment of money at a 
future day, or, in other words, to make a sale with a reservation to the 
vendor of a right to purchase the same land at a fixed price and at a 
specified time, would be to transfer to courts of equity in a consider- 
able degree the guardianship of adults as well as of infants.' Such 
a contract is known as a conditional sale, and is enforce^ according 
to its terms. The grantor must regain his estate, if at all, under his 
contract. If a time is named under which he must repurchase, it is 
of the essence of his contract, and he cannot be relieved on the 
ground that a penalty or a forfeiture is incurred. A court of equity 



' FuUerton v. McCurdy, 55 N. Y. 637 ; 
Hill V. Grant, 46 N. Y. 496 ; Saxton v. 
Hitchcock, 47 Barb. 220 ; Glover v. 
Payn, ig Wend. 518 ; Whitney v. Town- 
send, 2 Lans. 249 ; • Henley v. Hotaling, 



41 Cal. 22 ; Buse v. Page, 32 Minn. 
III. 

^ Conway's Executors v. Alexander, 7 
Cranch, 237 ; Cornell v. Hall, 22 Mich. 
377- 



26 MOETGAGES OF BEAL PEOPEETY. [§§ 32-33. 

"will not vary the express terms of his contract, or give him the 
benefit of an extension in point of time for which he has not 
stipulated.' 

§ 33. A mortgage and a conditional sale are in some re- 
spects quite similar. — They are both conveyances, and both contain 
provisions for the revesting of title in the grantor, and the great 
mark of difference between them is that a right of redemption is 
an inseparable incident to a mortgage, incapable of destruction or 
extinguishment, save by the judgment of a court of equity, a sale 
under a power, or the free consent of the mortgagor given for a valu- 
able consideration ; while in the case of a conditional sale the rights 
of the vendor are those expressly reserved to him by the agreement, 
and those only. Ever since the doctrine of an equity of redemption 
was first declared, the ingenuity of greedy lenders and of anxious 
borrowers has been taxed to evade it, and their contracts, though 
really intended as securities in the nature of mortgages, have fre- 
quently been clothed in the form of contracts of conditional sale. To 
distinguish the true nature of such transactions is, therefore, not 
always easy. 

§ 33. The chief and most obvious distinction between a 
mortgage and a conditional sale is that a mortgage is always col- 
lateral to a debt, and the existence of a debt has been said to be 
the decisive test upon this point.'' A mortgage being a conveyance 
made as security, it is plain that a mortgage can have no existence 
unless it be accompanied by a debt or obligation which it is made to 
secure, but in the case of a conditional sale the grantor is free to avail 
himself of the option to repurchase the property or not, as he may 
see fit. As was remarked by Maeshall, Ch. J., in Conway's Exec- 
utors V. Alexander (7 Cranch, 218), " the inquiry must be whether 
the contract in the specific case is a security for the repayment of 

' Robinson V. Cropsey, 2 Edw. Ch. 147; N. H. 35; Montgomery v. Spect, 55 

affi'd 6 Paige, 480 ; Henley v. Hotaling, Cal. 352 ; Klein v. McNamara, 54 Miss. 

41 Cal. 22. 90 ; Randall v. Sanders, 87 N. Y. 578, 

^ Story's Eq. Jur. § 1018 b ; Morrison afii'g 23 Hun, 611 ; Budd v. Van Orden, 

V. Brand, 5 Daly, 40 ; Holmes v. Grant, 33 N. J. Eq. 143 ; Judge v. Reese, 9 

8 Paige, 243 ; Horn v. Keteltas, 46 N. C. E. Green (N. J.) 387 ; Calhoun v. 

Y. 605 ; Hill V. Grant, Id. 496 ; Stoddard Lumpkin, 60 Tex. 185 ; Bearss v. Ford, 

V. Whiting, Id. 627 ; Pardee v. Treat, 108 111. 16 ; Harman v. May, 40 Ark. 

18 Hun, 298 ; Reading v. Warton, 7 146 ; Evert v. McBee, 27 Kans. 232 ; 

Conn. 143 ; 18 Am. Dec. 89 ; Edrington McNamara v. Culver, 22 Kans. 661 ; 

V. Harper, 3 J. J. Marsh (Ky.) 353 ; 20 Robinson v. Willoughby, 65 N. C. 520 ; 

Am. Dec. 145 ; Bethlehem v. Annis, 40 Turner v. Wilkinson, 72 Ala. 361. 



§§ 34-35.] CONDITIOKAL SALES. 27 

money or an actual sale. If a seenrity in the nature of a mortgage 
is intended, it is necessary that the mortgagee should have a remedy 
against the person of his debtor ; if this remedy really exists, its not 
being reserved in terms will not affect the case ; but the remedy must 
exist in order to justify a construction which overrules the express 
words of the instrument." ' 

§ 34. Absence of a covenant to pay debt is not conclusive. — 

If the existence or the non-existence of any evidence of debt were 
the only distinction between mortgages and conditional sales, a wide 
latitude would be offered for oppression in cases where the value of 
the security is so great that the creditor would seek to conceal the 
fact of indebtedness rather than to incorporate it in the evidence of 
the agreement. "While, therefore, the fact that there is no promise 
on the part of the grantor to pay the debt is a circumstance entitled 
to considerable weight, as tending to show that the conveyance was 
not intended as a mortgage, and that the relation of debtor and cred- 
itor did not exist, it is only one of several circumstances to be con- 
sidered, and is not conclusive.^ As was remarked by Marshall, 
Ch. J., in the case already cited : " The want of a covenant to repay 
the money is not conclusive evidence that a conditional sale was in- 
tended, but it is a circumstance of no inconsiderable importance." 

§ 35. Remedies reserved by the contract. — Another means of 
determining whether a contract is a conditional sale or a mortgage, 
though this may perhaps be almost identical with the one just con- 
sidered, is to inquire as to which class of contracts the mutual rights 
and remedies which are reserved by it to the parties belong. In the 
case of a mortgage, the mortgagee is restricted to his debt and interest, 
but, as an offset to this, he has the personal responsibihty of the 
debtor ; if the security be greater in value than the debt, the mort- 
gagor receives the benefit of it ; but if it be less, he must respond for 
the difference. The mortgagor has the right of redemption, but the 
mortgagee has the right of foreclosure, and the remedies are mutual 
and reciprocal. In the case of a conditional sale, on the contrary, the 
debt is extinguished by the conveyance, and unless the grantor avails 



' Robinson v. Cropsey, 3 Edw. Ch. long, 78 N. Y. 543, rev'g s. c. 16 Hun, 

138 ; Glover v. Payn, 19 Wend. 518. 570 ; Matthews v. Sheehan, 69 N. Y. 

s Horn V. Keteltas, 46 N. Y. 605 ; 585 ; Dougherty v. McColgan, 6 Gill 

Brown v. Dewey, iSandf. Ch. 56 ; Flagg & J., 275. 
V. Mann, 14 Pick. 467 ; Morris v. Bud- 



28 MORTGAGES OF REAL PEOPERTY. [§ 36. 

hiinself of the privilege granted by the contract, the loss from the 
decrease in value, or the profit from an increase, must belong to the 
grantee.' But this test cannot be relied upon with safety, because 
the right to foreclose and to redeem do not depend upon each other, 
and do not always co-exist," and there may be a loan or a debt with- 
out personal liability." 

§ 36. Inadequacy of price. — ^Among the circumstances which 
are of weight in this class of cases, may also be noted the value of 
the property as compared with the consideration, and great inade- 
quacy of price will be an indication that a security was intended and 
not a sale." But where the price paid at the time of the conveyance 
is inadequate, it will not become a mortgage if the grantee also cove- 
nants to pay a further sum in case the grantee does not call for a re- 
conveyance, for a credit may be given to the grantee for the price, 
without affecting the nature of the transfer as an absolute sale.* 

The following is the language of Chancellor Walwoeth, in 
Holmes V. Orci/iit (8 Paige, 243, 258) : " There is frequently great 
difficulty in determining whether a conveyance was intended by the 
parties as a mortgage or mere security for money, or as a conditional 
sale. But, as a general rule, where the contract and conveyance are 
made upon an application for a loan of money, this court, for the pur- 
pose of preventing usury and extortion, will construe it to be a mort- 
gage, whenever the person to whom the application for the loan is 
made agrees to receive back the money advanced, with legal interest, 
or a larger amount, and to reconvey the property within a specified 
time thereafter, whatever may be the form of the written contract, if 
it is apparent that the real transaction was a loan of money. And 
gross inadequacy of price is always a strong circumstance in favor of 
the supposition that a sale of the property was not intended." On the 
contrary, if the consideration paid is about the fair cash value of the 
property, the fact that there was no contract for the repayment of the 



' Randall v. Sanders, 87 N. Y. 578, v. Anderson, 62 How. 268 ; McKinney 

583, affi'g 23 Hun, 611. V. Miller, 19 Mich. 142 ; Turner v. Wil- 

' Coote on Mortgages, 50. kinson, 72 Ala. 361. 

' Brown v. Dewey, r Sandf. Ch. 56. ^ Baker v. Thrasher, 4 Den. 493 ; 

* Robinson V. Cropsey, 2 Edw. Ch. 138; Quirk v. Rodman, 5 Duer, 285. 

s. c. 6 Paige, 480 ; Reed v. Reed, 75 Me. " Brown v. Dewey, 2 Barb. 28 ; Wharf 

264 ; Holmes v. Grant, 8 Paige, 243, v. Howell, 5 Binn. 499 ; Klein v. Mc- 

258; Brown v. Dewey, 2 Barb. 28; Namara, 54Miss. 90 ; Critcherv.Walker, 

Wharf V. Howell, 5 Binn. 499 ; Coburn i Murphy, (N. C.) 488 ; 4 Am. Dec. 576. 



§§ 37-38.] CONDITIOWAL SALES. 39 

purchase money and interest wbicli was binding upon the person 
making the conveyance, so as to make his general right to redeem as 
a mortgagor, and the corresponding right of the grantee to recover 
back his money instead of keeping the land, mutual and reciprocal, 
is a strong circumstance in favor of constniing the contract to be a 
conditional sale and not a mortgage." ' 

§ 37. The subsequent dealings of the parties with relation to 
the transaction, in recognizing the existence of a debt or other- 
wise, may be shown to characterize their own understanding of their 
contract, but it must be remembered that the bargain received its 
character at its inception, and no subsequent event short of a new 
agreement can change a security into a sale or convert a sale into a, 
security." 

So also the relative position of the parties before and after the bar- 
gain may be considered. If the negotiation which preceded was for 
a loan,' and if the grantor retained possession afterward, these would 
be circumstances tending to show that a mortgage was intended, 
while, if the grantee first made apphcation to purchase, and entered 
immediately into possession, the presumption would be in favor of 
treating the transaction as a sale, and the agreement for repurchase 
as enforceable only according to its terms." 

§ 38. Each case must stand on its own special circum- 
stances. — It will be observed that the line of distinction between 
what constitutes a mortgage and what a conditional sale, is not very 
clearly defined, and each case may be said to stand upon its own 
special circumstances.' In some cases it is said that where there is a 
doubt, the instrument will be construed to be a mortgage, because in 
this way the grantee, who is repaid the amount of his advances and 
interest, cannot be grievously injured," while in others the grantor is 



' See also opinion of McCoun, V. C, v. Grant, 8 Paige, 243 ; Russell v. South- 
in Robinson v. Cropsey, 2 Edw. Ch. 138, ard, 12 How. (U. S.) 139 ; O'Reilly v. 
affi'd 6 Paige, 480 ; Randall v. Sanders, Donoghue, Ir. Rep., 10 Eq. 73 ; Coburn 
87 N. Y. 578, affi'g 23 Hun, 611. v. Anderson, 62 How. 268. 

^Kearney v. Macomb, l5 N. J. Eq. '^Saxton.v. Hitchcock, 47 Barb. 220. 
i8g. * Trucks v. Lindsey, 18 Iowa, 505 ; 

° Holmes v. Grant, 8 Paige, 243; Hughes v Schraff, 19 Iowa, 342 ; Weath- 

Tibbs V. Morris, 44 Barb. 139 ; Marvin ersley v. Weathersley, 40 Miss. 469 ; 

V. Prentice, 49 How. 385 ; Fiedler v. Wing v. Cooper, 37 Vt. 179 ; Honore v. 

Darrin, 50 N. Y. 441 ; s. c. 59 Barb. Hutchings, 8 Bush (Ky.) 687 ; Cornell v. 

651 ; Klein v. McNamara, 54 Miss. 90. Hall, 23 Mich. 377 ; Crane v. Bonnell, i 

*Rich V. Doane, 35 Vt. 125 ; Holmes Green. Ch. 264 ; Ketchum v. Johnson, 3 



30 MORTGAGES OF KEAL PEOPESTT. [§ 39. 

required to furnish ample proof before an instrument which is abso- 
lute upon its face is adjudged to be subject to a right of redemption ; ' 
and where the grantor endeavors to show, not only that the instru- 
ment is a mortgage, but also that it is void for usury, the proof is re- 
quired to be clear and convincing.'' 

No general rule of universal application can be found, except that 
where the evidence is such as to create a doubt in the mind of the 
court, the transaction is held to be either a mortgage ° or a. conditional 
sale, according as the rules governing the one relation or the other will 
serve the ends of substantial justice and prevent fraud or oppression. 

Each case must be decided in view of the peculiar circumstances 
which belong to it and mark its character ; the only safe criterion is 
the intention of the parties, and this is to be determined from all of 
the facts under which the instrument was executed, as well as from 
the written memorials of the transaction.* 

"Where a dispute arises as to whether a transaction is really a con- 
ditional sale or a mortgage, the grantee has the same right to bring 
an action to have it adjudged absolute as the grantor has to have a 
right of redemption established.' 

§ 39. The mere fact that a conveyance with an agreement 
to reconvey was recorded as a mortgage will not impress 
that character upon it. The object of the recording act was to pro- 
tect subsequent purchasers and incumbrancers; but an omission to 
comply with its provisions in. recording a conveyance would not in- 
validate such conveyance as between the parties, nor would an errone- 
ous recording thereof impair any existing right." 



Green. Ch. 370 ; Robertson v. Campbell, Campbell v. Dearborn, 109 Mass. 130 ; 

2Call.(Va.)42i; Kingv.Newman,2Munf. Eiland v. Radford, 7 Ala. 724 ; Wilkin- 

(Va.)4o; Matthewsv.Sheehan,6gN.Y.585; son v. Roper, 74 Ala. 140; Brant v. 

Turnipseed v. Cunningham, 16 Ala. 501 ; Robertson, 16 Mo. 143 ; Crane v. Bon- 

50 Am. Dec. igo ; Edrington v. Harper, nell, i Green. Ch. 264 ; Hickman v. Can- 

3 J. J. Marsh (Ky.) 353 ; 20 Am. Dec. 145. trell, 9 Yerger (Tenn.) 172 ; 30 Am. Dec. 

' Fullerton V. McCurdy, 55 N. Y. 637 ; 396 ; Pierce v. Robinson, 13 Cal. 116 ; 

Chase's Case, i Bland Ch. (Md.) 206; Peugh v. Davis, 96 U. S. 336; Rockwell v. 

17 Am. Dec. 277. . Humphrey, 57 Wis. 410; Bennett v. Holt, 

* Brown v. Dewey, 2 Barb. 28. 2 Yerger (Tenn.) 6 ; 24 Am. Dec. 455, 

'Stephens v. Allen, 11 Oreg. 188. ' Rich v. Doane, 35 Vt. 124. 

^Horn V. Keteltas, 46 N. Y. 608; " Morrison v. Brand, 5 Daly, 40 ; Jack- 
Wheeland v. Swartz, i Yeates, 579 ; son v. Richards, 6 Cow. 617, 619 ; Jack- 
Stephens V. Allen, II Oreg. i88 ; Wil- son v. Burgott, 10 Johns. 457; Jackson 
helm V. Woodcock, 5 Pacif. Rep. (Oreg.) v. Phillips, 9 Cow. 94 ; Jackson v. West, 
202 ; Cornell v. Hall, 22 Mich. 377, 383 ; 10 Johns. 466. 



§ 40.] CONDITIONAL SA.LES. 31 

§ 4:0. Examples of conditional sales and mortgages. — In 

Maeaulay v. Porter (71 N. Y. 173), a conveyance of property was 
made which was accompanied by the following agreement, executed 
by the grantee : " In consideration of a sale and conveyance of a 
house and lot by T to me (describing it), I, P, agree to take said 
property, subject to a mortgage of $1,200 ; all other incumbrances 
and taxes to be paid ofE by T; and I will pay her in cash, $1,300, 
and I will sell the property, at her discretion and mine, within the 
year, and divide the property equally. I wiU loan her $500 and take 
her note, to be paid within the year, or sooner, if the property is sold. 
If the property shall be sold within four months, I will cancel the 
note and surrender it to her. The premises may be sold at the op- 
tion of either party for not less than $4,000. If not sold within one 
year from date, all interest of T in the premises shall cease." It was 
held that the defendant, P, under his deed, took the fee of the land, 
subject to no other condition than that he should account for one-half 
of the profits on a sale thereof, if made within a year, and that the 
deed was properly recorded among absolute conveyances. The agree- 
ment was not a defeasance, which was to render the deed void on the 
payment of any sum of money, nor was there anything in the trans- 
action in the nature of a mortgage. The grantee, P, was not a cred- 
itor taking the land to secure any debt. ISTo debt existed, or was 
created in respect to the $2,500 paid for the property. If the land 
had depreciated, the grantee would have had no claim for reimburse- 
ment, nor was any privilege reserved to the grantor to redeem on 
payment of any sum. These circumstances were declared by Ka- 
PALLO, J., to be of great importance in determining the character of 
the transaction. 

In Palmer v. Ournsey (7 Wend. 248) there was an existing 
debt. The land was conveyed, in consideration of the debt, which 
was evidenced by a note. The note was surrendered. An agreement 
which was held to be a defeasance, was to the effect that if the land 
should sell for enough to pay the amount of the debt, and the prior 
mortgages on the premises, and the trouble of the grantee, he would 
pay back to the grantor all the overplus. There was no limit of time 
for the sale, nor was the grantee to get anything out of it but his 
debt and the trouble of collecting it. The court held that this agree- 
ment showed that it was not the intention of the grantor to part with 
any more of his interest than enough to satisfy the plaintiff's debt and 
the prior mortgages, and therefore it was intended only as security for 



32 MORTGAGES OF REAL PROPERTY. [§ 40. 

the debt. This ruling would have led to the conclusion that the 
grantor might have redeemed, and it was applied to the case, by 
holding that the debt was not extinguished by the conveyance, though 
the note was surrendered, and that the payee could recover on the 
note, the whole value of the property having been consumed by the 
prior mortgages. 

That case was, however, disapproved in the subsequent case of 
Baker v. Thrasher (4 Den. 493). In that case, an absolute deed 
was accompanied by a covenant, reciting that the deed had been given 
for the purpose of paying a debt, and agreeing that if the grantor 
could find a purchaser within a year, the grantee would convey to 
such purchaser for the amount of the debt and interest ; but that if 
the sale should not be made within a year, the grantee would pay for 
the land such additional sum as might be fixed by appraisers. It was 
held that this agreement did not make the deed a mortgage, there . 
being no condition under which the title could ever be revested in 
the grantor, but it being intended to remain in the grantee, or the 
person to whom he might convey.' 

In Conway v. Alexander (Y Cranch, 218), land had been conveyed 
to a third person in trust, to reeonvey to the grantor, if he should re- 
pay the purchase money before a day named, and, if not, then to 
convey to the purchaser. The money was not tendered at the time 
provided. There was no bond or other evidence of debt, and the 
court held the transaction to be a conditional sale and not a mort- 
gage. 

Where a person negotiated with the owner of land for its purchase, 
but, being unable to pay the price, induced a third person to become 
the purchaser, who, at the time, stated if he would make certain pay- 
ments at a specified time, he would convey the property to him, it 
was held that the transaction was an absolute purchase with a parol 
conditional agreement of sale and not a mortgage.' 

The owner of a farm contracted with a person to procure a pur- 
chaser upon the agreement that he should have all he could obtain 
over $2,000 for his trouble. To give effect to this agreement, the 
farm was conveyed to the person intending to act as a broker, who re- 
conveyed on condition that the reconveyance was to be void on 



' Per Rapallo, J., in Macaulay v. Por- Doll, 107 111. 275 ; Eckert v. McBee, 27 
ter, 71 N. Y. 173, 179. See also Rue v. Kans. 232. 

« Hill V. Grant, 46 N. Y. 496. 



§ 40.] coin)iTio]srAL sales. 33 

repayment of $2,000. The reconveyance was held to be a conditional 
sale and not a mortgage.' 

A conveyance of a leasehold and personal property made by a 
creditor to a debtor, npon the terms that the indenture is to be void 
if the grantee, his executors or assigns, should omit to pay certain 
debts, is not a mortgage, but a conveyance upon condition to be 
avoided by proof of the omission to pay the debts.' 



' Porter V. Nelson, 4 N. Hamp. 130. ' Hagthorp v. Veale, 7 Gill & J. (Md.) 

13 ; 26 Am. Dec. 594. 



CHAPTER III. 

EQUITABLE MORTGAGES AND IMPLIED LIENS EOE PTJECHASB 

MONET. 



EQUITABLE MORTGAGES. 

i 41. Definition ofan equitable mortgage. 

EQUITABLE MORTGAGES BY DEPOSIT 
OF TITLE DEEDS. 

42. English rule. 

43. Rule in this State. 

44. The case of Rockwell v. Hobby. 

45. In Hackney v. Vrooman. 

46. When an agreement for a lien 

upon land is enforced in equity 
as a lien. 

47. If the agreement for a lien be in 

writing. 

48. Examples of equitable liens. 

49. Lien reserved in deed of convey- 

ance. 

50. A writing properly authenticated, 

by which an equitable lien is 
created, may be recorded. 

51. Liens created by parol. 

THE LIEN OF_A VENDOR FOR UNPAID 
PURCHASE MONEY. 

52. Nature of the lien. 

53. Debt barred by limitation. 

54. Lien lasts until debt is paid. 

55. Improvements made upon the land 

by the purchaser are subject to 
the lien. 

56. Lien not affected by disabilities of 

vendee. 

57. Statute. 

58. Assignment of vendors' liens. 

59. When a third person may enforce 

a vendor's lien. 



§ 60. What amounts to a waiver of a 
vendor's lien. 
5i. The taking of a bond or note from 
the vendee for the payment of 
the purchase money will not dis- 
charge the lien. 

62. The lien is waived when the parties 

agree to substitute something else 
for the unpaid purchase money. 

63. Not waived where the intent is 

to preserve it. 

64. Lien of a vendee for money paid on 

contract of purchase. 

PRIORITY OF EQUITABLE MORTGAGES AS 
AGAINST SUBSEQUENT PURCHASERS 
AND INCUMBRANCERS. 

65. General rule. 

66. The lien for purchase money. 

67. A conveyance to a bona fide pur- 

chaser. 

68. As to what shall be sufficient no- 

tice. 

69. If the original vendor remains in 

open possession. 

70. When judgment will have priority. 

REMEDY PROPER FOR AN EQUITABLE 
MORTGAGEE. 

71. By suit in equity. 

72. Parties to action. 

73. Defenses. 

74. Retaining possession. 

75. Tender of deed before action to 

enforce lien for purchase money. 



EQIHTABLE MOETGAGBS. 

§ 41. Definition of an equitable mortgage. — There is a class of 
liens wMcli are known by the name of " Equitable Mortgages." They 
differ from mortgages in the fact that there is no conveyance of the 
land, either absolute or conditional, and the lien arises under the con- 



§ 42.] EQUITABLE MORTGAGES AND IMPLIED LIENS. 35 

tract or agreement of tlie parties. An absolute conveyance with a 
parol defeasance is, properly speaking, a mortgage, and is governed 
by all of the rules whicb apply to a mortgage in any other form ; bnt 
such contracts are often spoken of as equitable mortgages, in order 
to distinguish them from mortgages in which the defeasance is incor- 
porated in the conveyance. A better term to apply to such securities 
might be to designate them as conveyances which are equitably mort- 
gages ; but the ordinary term of equitable mortgages is convenient 
and need not be misunderstood. 

An equitable mortgage of the kind which it is now proposed to 
discuss is a Hen upon real estate, not created by a conveyance from the 
mortgagor, of such a character that it is recognized in equity as a security 
for money, and is treated in equity in some respects as a mortgage.' 

Equitable mortgages are simply securities by which no legal inter- 
est in the property mortgaged passes to the creditor, and thus include 
those transactions in which property, or the evidences of property, 
come into the hands of the creditor, upon a written or verbal, express 
or imphed, agreement that such property shall be answerable for the 
debt, as well as those transactions in which the intention or duty of 
creating a charge on property is held to arise from an express or im- 
phed contract to render that property liable.'' 

EQUITABLE MOETQ-AGES BT DEPOSIT OF TITLE DEEDS. 

§ 42. English rule. — A common mode of creating such a lien in 
England is by a deposit of title deeds as security for a loan of money. 
In the absence of a recording act, and where a vendor or mortgagor of 
land is required to produce the evidences of his title on every transfer 
or mortgage of his property, such a pledge may be a convenient and 
safe way for securing a loan. It has been held not to be an invasion 
of the statute of frauds, and the English courts of equity have sus- 
tained the right of the lender to retain the deeds until the loan was 
repaid, and have enforced the lien by a sale of the land.' In the ab- 
sence of proof to the contrary, evidence of an advance of money and 
the finding of title deeds of the borrower in the possession of the 
lender have been held to establish an equitable mortgage." 

' Bouvier's Law Diet. and cases cited ; Day v. Perkins, 2 Sandf . 

' Fisher on Mortgages, 51. Ch. 359 ; Ray v. Adams, 4 Hun, 332 ; 

^ Coote on Mortgages, 248 ; Fisher on James v. Morey, 2 Cow. 246 ; Carpenter 

Mortgages, 51 et seq. • v. O'Dougherty, 67 Barb. 397. 
* Rockwell V. Hobby, 2 Sandf. Ch. 9, 



36 MOETGAGES OF REAL PKOPEETY. [§§ 43-45. 

§ 43. Rule in this State.— Where a recording act is in full force, 
and where, consequently, the possession of title deeds is a matter of 
small importance, their deposit would constitute but a slight security ; ' 
and in this State the doctrine of equitable mortgage by deposit of 
title deeds is almost unknown, because we have no practice of creat- 
ing liens in this manner.*' The mere fact that title deeds were found 
in the possession of the creditor would certainly afford no presump- 
tion of hen, and it is a question fairly open for dispute as to whether 
the doctrine can exist under our statutes.' 

§ 44. The case of Rockwell v. Hobby (2 Sandf. Oh. 9) goes 
farther toward sustaining the doctrine of eqidtable lien by deposit of 
title deeds than any other reported decision in this State. In that 
case a son paid a mortgage incumbrance on his mother's property 
with his own money, and took a receipt in his own name ; the mort- 
gage was not cancelled nor discharged. There were strong equitable 
considerations in his favor, and though the evidence was vague, it ap- 
peared to be probable that an assignment of the mortgage either was 
made, or was intended to have been made. The parties to the trans- 
action were dead, but the mother's unrecorded title deed to the prop- 
erty was found in the possession of the sou's representatives ; and as 
one ground for doing justice in the case, the vice-chancellor held that 
this was evidence sufficient to sustain the lien. The decision was 
plainly a fair and just one, but no subsequent case has followed it to 
the extent of its full claims. It is criticised in Bowers v. Johnson 
(49 ]Sr. T. 432), and, in that case, where an advance of money was 
shown, coupled, with the possession by the lender of a mortgage be- 
longing to the borrower, it was held that there was no, presumption 
that the mortgage had been deposited with him as collateral security. 
It was observed by the court that the case of Rockwell v. Hobby {supra) 
might well stand upon its own special circumstances, but that since 
mortgages are, in this State, rarely transferred by an agreement and 
delivery without writing, in the absence of written evidence there is 
a presumption against any transfer. 

§ 45. In Hackney v. Vrooman (62 Barb. 650), a bond and mort- 
gage were found, after the mortgagor's death, in a tin box, con- 

' Berry v. Mutual Ins. Co., 2 Johns. Mt does not exist in Tennessee. Mea- 

Ch. 603. dor V. Meador, 3 Heisk. (Tenn.) 562 ; nor 

' Stoddard v. Hart, 23 N. Y. 561 ; see in Massachusetts, Ahrend v. Odiorne, 

also Berry v. Mutual Ins. Co., 2 Johns. n8 Mass. 261. 
Ch. 603. 



§§46-47.] EQUITABLE MORTGAGES AND IMPLIED LIENS. 37 

taining paid notes, papers of old dates, bills of goods, old outlawed 
notes due him, and other miscellaneous papers ; and this fact, with 
proof of a declared intention of the mortgagee to give the bond and 
mortgage to his daughter, who was the wife of the mortgagor, was 
held to be sufficient to establish such gift. 

The delivery of a contract for the purchase of lands by the pur- 
chaser to a third person as security for becoming a guarantor for such 
purchaser, and without any written assignment, constitutes an equita- 
ble mortgage.' So, an assignment of a certificate of entry upon lands 
of the United States as security for a debt has been held to create 
an equitable lien upon the land." 

§ 46. When an agreement for a lien upon land is enforced in 
equity as a lien. — It has been said that an agreement for a mortgage 
is, in equity, a specific lien upon the land.' This must not be con- 
strued to mean that a parol promise to give a mortgage can be en- 
forced except in very special cases. Such a contract, to be vaKd, 
must be in writing ; and the advancing of money is not such a part 
performance as will take the case out of the statute of frauds.' The 
exceptions to the rule wiU be found in cases where there is an ele- 
ment of accident, fraud, or mistake, and where, upon the well-estab- 
lished principles of courts of equity, relief may be given.' 

An agreement in writing, upon a valuable consideration, to give a 
mortgage," or a mortgage defectively executed, or an imperfect at- 
tempt to create a mortgage, or to appropriate specific property to the 
discharge of a particular debt, will create a hen in equity, the rule 
being founded upon the maxim that a court of equity looks upon 
things agreed to be done as actually performed.' 

§ 47. If the agreement for a lien be in writing, a court of 
equity will not be embarrassed by its being in a form somewhat un- 
usual, and when it is plain that the parties intended to impose a 
charge upon land as a security for the performance of their engage- 

' Allen V. Woodruff, g6 111. ii. v. Anderson, 34 N. J. Eq. 496, and cases 

' Storer v. Bounds, i Ohio St. 107 ; collected by reporter in note. 

Hill V. Eldred, 50 Cal. 398. ^ Ray v. Adams, 4 Hun, 332. 

' In the matter of Howe, i Paige, 125, ' Lynch v. Utica Ins. Co., 18 Wend. 

130; ig Am. Dec. 395; White v. Car- 236. 

penter, 2 Paige, 264 ; Payne v. Wilson, ' Payne v. Wilson, 74 N. Y. 348 ; Na- 

74 N. Y. 348 ; Burdick v. Jackson, 7 tional Bank of Norwalk v. Lanier, 7 

Hun,488; Bloom v.Noggle, 4 0hioSt. 45. Hun, 623; Burdick v. Jackson, 7 Id. 

* Marquat v. Marquat, 7 How. 417 ; 488 ; Burger v. Hughes, 5 Id. 180 ; 

Price V. Cutts, 28 Ga. 142. See Dean Stewart v. Hutchinson, 29 How. 181. 



38 MORTGAGES 01" EEAL PROPERTY. [§ 48. 

ments, the agreement will be treated as conferring rights similar to 
those ordinarily evidenced by a mortgage.' The same rule will hold 
where the parties do not explicitly so contract, but it is manifestly 
equitable that the land should be charged. For example, in a case 
where two owners of adjoining parcels of land mortgaged both par- 
cels to secure the debt of one, who gave his bond to the other, con- 
ditioned to pay the whole debt, it was held that this bond created an 
equitable mortgage and might properly be recorded." 

It has been said that an agreement for a lien or charge m rem, 
constitutes a trust, and is governed by the general rules, applicable to 
trusts.' 

§ 48." Examples of equitable liens. — Where a married woman 
purchased land and gave her note therefor, in which she said : " For 
the payment of which I hereby pledge my sole and separate estate, 
being 514 West Forty-third Street," the lien of the vendor was en- 
forced by a sale." So a declaration in a promissory note executed by 
a mortgagor to a mortgagee that it " shall be covered by the mort- 
gage," or " shall be subject to the mortgage," shows an intention to 
make the mortgage a valid security for the debt and creates an equit- 
able lien or mortgage on the premises for its payment,' even though 
the debt which the mortgage, at its inception, was intended to secure, 
has been paid." 

A covenant by a debtor with his creditor to purchase certain lands 
and then to mortgage them to him, will be enforced in a court of 
equity by a decree of sale.' 

An agreement between vendor and vendee that the latter shall 
execrfte to the former a mortgage upon the land to secure payment 
of the purchase money, will give to the vendor or his assigns the same 
rights in equity as if the mortgage had been executed.' 

Where, by a contract for the sale of land, the vendor retains the 
title as security for the unpaid purchase money, and the vendee exe- 



' De Pierres v. Thorn, 4 Bosw. 266 ; ' Butts v. Broughton, 72 Ala. 294. 

Seymour v. The Canandaigua R.R. Co., . * Peckham v. Haddock, 36 111. 39 ; see 

14 How. 531 ; Chase v. Peck, 21 N. Y. also Waddell v. Carlock, 41 Ark. 523 ; 

581; Lynch V. iftica Ins. Co., 18 Wend. Prickett v. Seybert, 71 Ala. 194; Bry- 

^36 ; Stewart v. Hutchins, 6 Hill, 143. ant v. Stephens, 58 Ala. 636. 

^ Hoyt V. Doughty, 4 Sandf. 462. ' Wright v. Shumway, i Biss. 23 ; 2 

' Fletcher V. Morey, 2 Story, 555. Am. Rep. 20. 

■• Mears v. Kearney, i Abb. N. Cas. " Richardson v. Hamblett, 33 Ark. 237. 
303- 



§§49-51.] EQUITABLE MOETGAGES AND IMPLIED LIEN'S. 39 

cutes his notes therefor, the contract and notes may be sold and en- 
forced in equity as a mortgage.' 

In Perry v. Boa/rd of Missions, etc., of ATharvy (102 N. Y. 99), 
a conveyance was made to a religions corporation of a dwelliDg-house, 
which was intended to be used as a residence for a bishop. The 
trustees of the corporation passed a resolution that the land property be 
mortgaged for the payment of the sum required for repairs and fitting 
it up for the desired purpose. In reliance upon this resolution the 
plaiutifE incurred expense, and it was held that he had an equitable 
lien. It wa& also declared by the court that the plaintifE's case was 
within the general doctrine of equity which gives a right equivalent 
to a lien, when in no other way the rights of parties can be secured. 

§ 49. Lien reserved in deed of conveyance. — A lien upon lands 
may also be created by a reservation in the deed of conveyance," 
and a charge for the support of a third person, when so reserved, has 
been held to be vahd." 

A lien so reserved, by express terms, in the deed of conveyance of 
the property, is more than a vendor's implied Hen, and is not 
lost by assignment of the notes given for the debt, but passes to the 
assignee.* 

§ 50. A writing properly authenticated by which an equitable 
lien is created may be recorded in like manner as a technical 
mortgage, and its record will confer the same rights as to priority 
over subsequent incumbrances.' 

§ 51. Liens created by parol. — ^While a parol agreement to ex- 
ecute a mortgage will not create a Hen on the land as between the 
parties to it, because of our statute of frauds, this is a rule of evi- 
dence, merely, and a subsequent performance of the agreenient will 
be vaHd for some purposes as of the time when the parol promise 
was given. This rule was appHed in a case under the bankruptcy 
law, when, but for the previous parol agreement, the mortgage would 
have been void as to creditors." 

Where a mortgage was executed by a corporation for part of the pur- 
chase price of chattels purchased by it, and the mortgage was void be- 

1 Wright V. Troutman, 8i 111. 374. 467 ; Payne v. Wilson, 74 N. Y. 348 ; 

" Dingley v. Bank of Ventura, 57 Cal. Markoe v. Andras, 67 111. 34. 
467. ' Hunt V. Johnson, 19 N. Y. 279 ; 

= Borst V. Crommie, 19 Hun, 209. Crane v. Turner, 7 Hun, 357 ; Parkist 

■* Dingley v. Bank of Ventura, 57 Cal. v. Alexander, i Johns. Ch. 394. 

« Burdick v. Jackson, 7 Hun, 488. 



40 MORTGAGES OF KEAL PKOPEKTT. [§§52-53. 

cause of a statute prohibiting the executing of mortgages by the cor- 
poration, the lien was sustained on the ground that the essence of the 
transaction between the parties was to transfer, not a complete title, 
but a mere right to redeem, from the mortgage.' 

THE LIEN OF A VEITOOE FOB m^'AID PmtCHASB MONET. 

§ 52. Nature of the lien. — The vendor, upon the sale of real -es- 
tate, has in all cases an equitable lien upon the estate sold, for the un- 
paid purchase money, as between himself and the vendee, unless there 
is either an express or implied agreement to waive such lien. Prima 
faoie the purchase money is a lien on the land, and it lies with the 
purchaser to show that the vendor agreed to rest on other security." 

The lien does not exist in favor of a person who advances money 
to purchase lands, but only between the vendor and vendee and the 
persons representing them, and then only for the purchase money.' 
But the fact that the vendor, at the request of the vendee, gives the 
deed in the name of the vendee's wife, does not preclude the vendor 
from enforcing his lien.* 

Where one conveys his interest in copartnership lands to a co- 
partner, he is entitled to a vendor's lien, on the death of the copart- 
ner, before payment, in the absence of fraud and there being no 
creditors of the deceased's estate.' 

A vendor's lien extends to equitable titles, subject to the risk that 
"bona fide purchasers from the legal holder may intervene." 

The vendor has the same hen while the contract is executory, and 
may have the land sold in discharge of the Men if such remedy is re- 
quired for his protection.' 

§ 53. Debt barred by limitation. — A vendor's lien is a mere 
equity in favor of the vendor and his legal representatives, the effect 
of which is to preserve to him and them a qualified title to the land, 

' Coman v. Lakey, 8o N. Y. 345. Barrett v. Lewis, 106 Ind. 120 ; Diven- 

' Garson v. Green, i Johns. Ch. 308 ; ger v. Branigan, 95 Ind. 221. In other 

Clark V. Hall, 7 Paige, 382 ; Pitts v. States it is not recognized at all. Moore 

Parker, 44 Miss. 247 ; Stephens v. Shan- v. Ingram, 91 N. C. 376 ; Hoskins v. 

non, 43 Ark. 464 ; Chapman v. Liggett, Wall, 77 N. C. 249 ; Smith v. High, 85 

41 Ark. 292. N. C. 93 ; Kelly v. Ruble, 11 Oreg. 75. 
3 Marquat v. Marquat, 7 How. 417 ; ■« Williams v. Crow, 84 Mo. 298. 

McKay v. Green, 3 Johns. Ch. 56 ; Pet- ^ Rggse v. Kinkead, 18 Nev. 126. 

tus V. McKinney, 74 Ala. 108. In some * Ortmann v. Plummer, 52 Mich. 76. 

States it exists in favor of a third per- ' Kerngood v. Davis, 2 S. C. 183. 
son who advances purchase money. 



§§ 54-55.] EQUITABLE MOETGAGES AND IMPLIED LIENS. 41 

until its price has been paid ; it cannot exist apart from the debt, and 
"when the statute of limitations runs against the debt the Hen also 
ceases to have any force.' Where a judgment is obtained on a pur- 
chase-money note preserving it from the statute of limitations, the 
lien is also preserved.^ If the circumstances of the case are such that 
the vendor of the land would not be barred by the statute of limitar 
tions, a person who has acquired his rights would not be." 

§ 54. Lien lasts until debt is paid. — It may also be said that un- 
less there be a waiver, express or implied, the hen remains so long as 
the debt lasts. Thus, where the vendor and vendee before full per- 
formance of the contract made a usurious agreement, and the mort- 
gage given in pursuance of that agreement was set aside, it was held 
that the original debt was not invalidated, and that the unpaid pur- 
chase money remained an equitable lien upon the land.' So, where 
a bond and mortgage for the purchase money was defectively exe- 
cuted, a vendor's lien was enforced." So, also, where by the fraud of 
the vendee, a part of the price of the land sold in fact remained un- 
paid, although the vendor supposed it had been paid in full at the 
time, there is no waiver of the equitable lien for the part of the price 
that actually remains impaid. If, upon the sale of a farm, the pur- 
chaser should pay for half of it in good money, and for the other half in 
the worthless bills of a broken and insolvent bank, from which nolhing 
could be obtained, the vendee fraudulently representing such bills to 
be good and collectible, the vendor would have the right to elect either 
to rescind the sale and have a reconveyance of the land, or to charge 
the land itself with the portion of the purchase money which re- 
mained unpaid, as an equitable lien. If, instead of being a sale for 
cash, other property be given in exchange, and the vendee by fraud 
induces the vendor to believe that the property he is receiving is 
more desirable than it really is, the vendor can enforce his claim for 
damages, which in reality represents a portion of the purchase money, 
as a lien upon the land.' 

§ 55. Improvements made upon the land by the purchaser 
are subject to the lien, both in his hands and in the hands of his 

' Borst V. Corey, 15 N. Y. (i Smith), 772 ; contra Hale v. Baker, 60 Tex. 

505 ; Waddell v. Carlock, 41 Ark. 523 ; 217. 

Linthicum v. Tapscott, 28 Ark. 267 ; ^ Beck v. Tarrant, 61 Tex. 402. 
McRath V. Simmons, Lead. Cas. ' in Eq. ^ Rodman v. Sanders, 44 Ark. 504. 
Vol. I. p. 496 (4th ed.) Amer. Notes and * Crippen v. Heermance, g Paige, 211. 
cases cited ; Stephens v. Shannon, 43 ^ Burger v. Hughes, 5 Hun, 180. 
Ark. 464 ; Trotter v. Irwin, 27 Miss. * Bradley v. Bosley, i Barb. Ch. 125. 



42 MORTGAGES OF EEA.L PROPERTY. [§§ 56-58. 

legal representatives,' and when the Hen is upon a lease, it extends to 
a renewal upon it." 

§ 56. Lien not affected by disability of vendee. — The lien is 
created by operation of law, the vendor retaining an interest in the 
land to the amount of his lien, hence it is not affected by the disabili- 
ties of the vendee, even though the vendee be a company, which, by 
a statutory provision, has no power to mortgage real estate or to give 
any Ken thereon.' 

§ 57. Statute. — ^It is provided by statute that whenever any real 
estate, subject to a mortgage executed by an executor or testator, shall 
descend to an heir or pass to a devisee, such heir or devisee shall sat- 
isfy and discharge such mortgage out of his own property, without 
resorting to the executor or administrator, unless there be an express 
direction in the will of such testator that such mortgage be otherwise 
paid." The sole object of the statute was to change the rule of the 
common law under which the heir or devisee has the right to call 
upon the representative of the decedent to pay off the mortgage. 
A vendor's lien is not a mortgage, and it has often been held, both 
before and since the statute, that in case of unpaid purchase money, 
the heir or devisee is entitled to have the same paid out of the per- 
sonal property." 

§ 58. Assignment of vendors' liens. — The transfer by indorse- 
. ment of a note given for purchase money, does not transfer the lien, 
except in so far as that may be necessary to protect the vendor as in- 
dorser. "Where a vendor had negotiated the note, but was obliged to 
take it up himself when it fell due, his claim to a lien on the land 
was sustained, but the assignee of the note or other security has never 
been permitted to enforce a lien in his own behalf." The lien exists 
in favor of the vendor, and to insure to him the payment of the pur- 
chase money. If he assigns the claim to a third person, and the 
transfer be absolute and unaccompanied by any guarantee of the 
vendor, and for the beneiit of the assignee, and if the lien be not men- 
tioned it will be gone forever, unless the claim again becomes the 
property of the vendor, when the lien will revive in his favor.' The 

' Warner v. Van Alstyne, 3 Paige, 513. 231 ; Johnson v. Corbett, 11 Paige, 265 ; 

' Phyfe V. Wardell, 5 Paige, 268. Lamport v. Beeman, 34 Barb. 239 ; 

= Dubois V. Hull, 43 Barb. 26. Wright v. Holbrook, 32 N. Y. 587. 

* I R. S. 749, § 4. ' White v. Williams, i Paige, 502. 

'Livingston V. Newkirk, 3 Johns. Ch. 'Preston v. Ellington, 74 Ala. 133; 

312 ; Cogswell v. Cogswell, 2 Edw. Ch. Lindsey v. Bates, 42 Miss. 397. 



§ 59.] EQUITABLE MOETGAGES AKD IMPLIED LIEKS. 43 

reason of this rule is, that there is no peculiar equity in favor of the 
third person, and it wiU not apply where the transfer is for the pur- 
pose of paying the debt of the vendor, so far as it may be available, 
and is therefore for his benefit. In such a case the equity con- 
tinues.' 

"While an assignment of the debt will not operate as a transfer of 
the lien, the lien may be assigned with the debt by express terms," 
and it passes to an assignee for the benefit of creditors as part of the 
vendor's property.' It has also been said that the lien may be as- 
signed by parol.* 

A lien carved out of the estate by the express contract of the par- 
ties or reserved by the vendor by the terms of his deed, stands on a 
different basis with respect to an assignment of it from the implied 
liens for the purchase money which are recognized by courts of equity 
in favor of *a vendor who has voluntarily parted with his entire legal 
title. Where the Hen is created by contract a transfer of the debt 
carries the lien.' 

Where a husband was the owner of an equitable lien for unpaid 
purchase money, and united with his wife in a conveyance of the 
property, under a mistaken belief that his wife had title, it was 
held that the grantee acquired the equitable lien.° 

§ 59. When a third person may enforce a vendor's lien. — A 

lien for purchase money may, under some circumstances, also be en- 
forced in favor of a third person, notwithstanding doubts formerly 
expressed on that subject. As, for example, it may be enforced by 
marshalling assets in favor of legatees and creditors, and giving them 
the benefit of it by the way of substitution to the vendor when he 
seeks payment out of the personal assets of the vendee ; or in favor 
of a widow, whose dower right may be affected by the lien.' So, if 
a subsequent incumbrancer or purchaser from the vendee is com- 
pelled to discharge the lien of the vendor, he will, in like manner, be 
entitled to stand substituted in his place against other claimants on 



• Hallock V. Smith, 3 Barb. 267 ; Smith Peterson, 75 Ala. 109 ; Dingley v. Bank 
V. Smith, 9 Abb. N. S. 420. of Ventura, 57 Cal. 467. 

' Smith V. Smith, 9 Abb. N. S. 420 ; * Lamberton v. Van Voorhis, 15 Hun, 

Chapman v. Liggett, 41 Ark. 292. 336 ; Arnold v. Patrick, 6 Paige, 310 ; 

3 Hallock V. Smith, 3 Barb. 267. Fisk v. Potter, 2 Keyes, 72 ; Hulett v. 

* Fisher on Mortgages, 62. Whipple, 58 Barb. 227. 

' Payne v. Wilson, 74 N. Y. 348 ; ' Warner v. Van Alstyne, 3 Paige, 

Markoe v. Andras, 67 111. 34 ; Lowery v. 513. 



44 MOETGA&ES OF BEAL PEOPEETY. [§ 60. 

the estate, under the vendor, and to have the assets marshalled in his fa- 
vor.' And if one of two parties, vrhose lands are jointly subject to a 
vendor's lien, pays a judgment for the debt, he is entitled to subro- 
gation to the vendor's rights, for the purpose of enforcing his right 
of contribution.'' 

§ 60. What amounts to a waiver of a vendor's lien.— The giv- 
ing of a lien for the unpaid purchase money is supposed to be in- 
tended in every transfer of real estate, unless the parties by their 
conduct show that no such security was contemplated, and the lien 
will be defeated if the vendor do any act manifesting an intention 
not to rely upon the land for security. It will not be affected by 
taking the mere written obligation of the vendee, even though it be 
negotiable, and any bond, note, or covenant, given by the vendee 
alone, is considered as intended only to countervail the receipt of 
the purchase money contained in the deed, or to show the time and 
manner in which the payment is to be made, unless there is an ex- 
press agreement to waive the equitable hen.^ Neither is it waived 
by taking a renewal note.' 

On the other hand, the lien is considered as waived whenever any 
security is taken on the land or otherwise, for the whole or any part 
of the purchase money, unless there is an express agreement that the 
equitable lien upon the land shall be retained. "Where, by agreement 
of the parties, there is express security, either by the obligation of a 
third person,' or by express lien upon the estate or some portion of 
it, or upon other property, for a portion of the purchase money, it 
excludes the idea of an implied lien for the residue." 

Where the note of a third party is given in payment of a part of 
the purchase money, the lien would not be waived for the balance, and 
there is strong reason and some authority for holding that the taking 



' Story's Eq. Jur. § 1227 ; Turner v. Board, etc., 87 Ind. 162 ; Lord v. Wil- 

Peck, I Barb. Ch. 549 ; Crafts v. Aspin- cox, gg Ind. 491. 

wall, 2 N. Y. 1,2 Comst.) 289. « Fish v. Rowland, i Paige, 20 ; Shir- 
' Beck V. Tarrant, 61 Tex. 402. ley v. Sugar Refinery, 2 Edw. 505 ; Vail 
' Garson v. Green, i Johns. Ch. 308 ; v. Foster, 4 N. Y. (4 Comst.) 312 ; Gay- 
White V. Williams, I Paige, 502 ; Shir- lord v. Knapp, 15 Hun, 87 ; Camden v. 
ley V. Sugar Refinery, 2 Edw. 505 ; War- Vail, 23 Cal. 633 ; Richards v. McPher- 
ren v. Finn, 28 Barb. 333. son, 74 Ind. 158 ; Masters v. Templeton, 
* Cordova V. Hood, 17 Wall. i. 92 Ind. 447; Hawkins v. Thurman, i 
' Masters v. Templeton, 92 Ind. 447 ; Idaho Ter. (N. S.) 598 ; Land Co. v. 
Way V. Patty, i Ind. 102; Crane v. Peck, 112 111. 408; contra, Anketel v. 

Converse, 17 Ohio St. n. 



§ 61.] EQUITABLE. MOETGAaES AND IMPLIED LIENS. 45 

of such an obligation as security for a portion of the amount, will not 
affect the lien as to the residue.' Thus, where two persons agreed 
to exchange lands, the first agreeing to pay certain mortgages on his 
land and also giving back a mortgage on the land conveyed to him, 
and he failed to pay the mortgage on his land, it was held that the 
second party had a right to a vendor's lien for the amount of the 
mortgages on the land conveyed to him, and that it was not waived 
by his taking back a mortgage for another part of the purchase price.' 

Taking the note of the husband for land conveyed to the vnfe is 
not a waiver of the vendor's lien.' 

A vendor's lien is not lost by the acceptance of securities which 
have no legal vahdity." And where the vendor was, subsequently to 
the sale, by fraudulent representations induced to accept a worthless 
bond in payment of a portion of the purchase money, it was held 
that this was not a payment and that the vendor's lien still sub- 
sisted.' 

The surrender of a mortgage voluntarily on a fair contract is an 
abandonment of it, and does not revive the equitable lien." 

§ 61. The taking of a bond or note from the vendee for the 
payment of the purchase money, will not discharge the lien, and 
there is no good reason why the prosecution of such a bond or note 
should have that effect. The obtaining of a judgment upon the debt 
may, with other facts, be some evidence of an intention to waive the 
lien ; but, in itself, it does not amount to a waiver.' It may, indeed, 
be said that the taking of security of any kind for the purchase 
money, is only evidence of an intention to abandon the lien, and that 
even when it is very strong, it does not amount in itself to a waiver, 
but that the inference of a waiver which is thus created may be rebutted 
by proof of an agreement or of circumstances leading to the presump- 
tion of an agreement to the contrary.' 



' Hallock V. Smith, 3 Barb. 267. Langley, 85 Ind. 77 ; Lord v. Wilcox, gg 

^ Elliott V. Plattor, 43 Ohio St. igS. Ind. 4gi. 

' Bakes v. Gilbert, g3 Ind. 70 ; Felton 'Brown v. Byam, 65 Iowa, 3-4 ; Mc- 

V. Smith, 84 Ind. 485 ; Martin v. Canall, Doll v. Purdy, 23 Iowa, 277 ; Bradley v. 

72 Ind 67 ; Humphrey V. Thorn, 63 Ind. Bosley, i Barb. Ch. 125. 

2g6; Anderson v. Tannehill, 42 Ind. "Mattix v. Weand, ig Ind. 151. 

141. ' Dubois V. Hull, 43 Barb. 26 ; contra, 

* Bakes V. Gilbert, 106 Ind. 558 ; Fouch Ould v, Stoddard, 54 Cal. 613. 

V. Wilson, 60 Ind. 64 ; 28 Am. Rep. 651 ; * Fisher on Mortgages, 63 ; Cordova v. 

Felton V. Smith, 84 Ind. 485 ; Hines v. Hood, 17 Wall. i. 



46 MORTGAGES OF REAL PEOPEETT. [§§ 62-64. 

§ 62. The lien is waived when the parties agree to substitute 
something else for the unpaid purchase money, as the covenant 
or obKgation of the vendee to do some collateral act.' In such a case 
the covenant or obligation takes the place of the unpaid purchase 
money, and forms part of the consideration. There is, therefore, no 
part of the purchase money unpaid, and the vendor's lien is only in- 
tended to secure such a debt. If a debt or obligation of another kind 
has been created by the parties, they must also create security for it 
if they desire it to be secured.'' As examples of this rule, a covenant to 
support a third person, given in payment for a conveyance of land, is 
not secured by any equitable hen upon the land so conveyed ; ' and 
a covenant against incumbrances contained in a deed given as part 
of the purchase price for other real estate can be enforced only as the 
personal obligation of the person making it.* So, also, the hen is lost 
when the vendee has done all that he agreed to do, as where he de- 
livered a deed of other property to a third person in escrow, even 
though such third person wrongfully refuses to surrender it.' 

§ 63. Not waived where the intent is to preserve it. — An 
equitable lien created by contract or by an ineffectual attempt to create 
a legal lien, is not waived by thereafter taking a mortgage properly 
executed so as to give priority to intermediate incumbrances. In such 
a case the equitable lien has had an existence and the law is not anx- 
ious to imply a waiver. 

Whether it has ceased to exist depends upon the rules of equity 
which determine whether a w'aiver has taken place. It is a general 
rule that where an equitable and legal estate meet and vest in the same 
ownership, the former is merged in the latter. But the doctrine of 
merger, as applied to mortgages, is founded upon equitable princi- 
ples, and is only applied where equity requires that it should be. 
"Where the owner of the legal and equitable titles has an interest in 
keeping those titles distinct, as where there is an intervening incum- 
brance, he has a right so to keep them, and the equitable title will not 
be merged and thereby extinguished.' 

§ 64. Lien of a vendee for money paid on contract of pur- 
chase. — Another example of an equitable lien is furnished, where 

' McKillip V. McKillip, 8 Barb. 552 ; * Hare v. Van Deusen, 32 Barb. 92. 
Patterson v. Edwards, 7 Cushman's Mis- * Coil v. Fougera, 36 Barb. 195. 
sissippi R. 67. * Per Folger, J., in Payne v. Wilson, 

•^ Hare v. Van Deusen, 32 Barb. 92. 74 N. Y. 348, 353. 

3 McKillip V. McKillip, 8 Barb. 552. 



§§ 65-66.] EQUITABLE MORTGAGES AND IMPLIED LIENS. 47 

some part of the purchase money has been paid upon an executory 
contract for the purchase of lands, the title remaining in the vendor. 
In such a case the vendee acquires a lien upon the property to the 
extent of the money paid, and it is well settled that his interest will 
be protected against any one but a hona fide purchaser and incum- 
brancer, who has advanced money or property without notice of the 
vendee's equity. In suclf cases, the vendee is considered in equity as 
the owner, and the vendor as his trustee, and the equitable rule is 
enforced of treating that as done which was agreed to be done.' 

PEIOEITT OF EQUITABLE MOETGAGES AS AGACNST SUBSEQUENT PUE- 
CHASEES AND mCUMBEANCEES. 

§ 65. General rule. — ^Vendors' liens for unpaid purchase money 
are the most common of equitable hens, and the adjudications upon 
them are the most numerous, but the rules which fix their priority as 
against judgments and the like will also determine the priority of 
other equitable liens. They will in general prevail as against every- 
thing except the claims of purchasers for value and without notice." 
It must be remarked, however, that an equitable lien cannot prevail 
to divest rights which existed before the lien was created, and that 
an equity against one person cannot be enforced against another." 

§ 66. The lien for purchase money exists not only as against the 
vendee himself, but as against his heirs and other privies in estate, 
and also as against all subsequent purchasers having notice that the 
purchase money is unpaid. To the extent of the lien the vendee be- 
comes a trustee for the vendor ; and his heirs and all other persons 
claiming under him or them, with such notice, are treated as in the 
same predicament." As Lord Kedesdale remarked in Hughes v. 
Kea/rney (1 Schoale & Lefroy, 132), " the heir cannot be permitted 
to hold what the ancestor unconscientiously obtained ; and is it not 
a thing unconscientiously obtained when the consideration is not 
paid ? " Upon the same principle the lien is said to exist as against 
a widow's claim for dower," or as against a judgment creditor of the 



' Lane v. Ludlow, 6 Paige, 316, n. ; 'Cook v. Kraft, 3 Lans. 512 ; s. c. sub 

Parks V. Jackson, n Wend. 442; ^tna nom. Cook v. Banker, 50 N. Y. 655; 

Ins. Co. V. Tyler, 16 Wend. 385 ; Chase Dwight v. Newell, 3 N. Y. (3 Comst.) 

V. Peck, 21 N. Y. 585 ; Westbrook v. 185 ; Spring v. Short, 90 N. Y. 538. 

Gleason, 14 Hun, 245. * Story's Eq. Jur. §1217; Davis v. 

' Christopher v. Christopher, 64 Md. Pearson, 44 Miss. 508. 

583 ; Gilman v. Brown, 4 Wheat, 256. ' Warner v. Van Alstyne, 3 Paige, 513. 



48 MORTGAGES OP REAL PROPERTY. [§§67-68. 

vendee/ unless special equities are shown," or an assignee for the 
benefit of creditors/ or a purchaser from the vendee with notice or 
who paid no new consideration,* or a holder of a subsequent mechan- 
ic's lien," or a claim to homestead rights subsequently set apart.' 

And, in general, a vendor's lien will prevail against any subsequent 
equal equity unconnected with any legal advantage, or an equitable 
advantage, giving a superior claim to the legal estate.'' It will be 
preferred to a mortgage given without new consideration by a wife 
to secure her husband's debt.' 

§ 67. A conveyance to a bona fide purchaser will destroy a lien 
upon the land,' but it wiU still attach to any interest in the land re- 
tained by the vendee. For example, a mortgage taken by him from 
the purchaser will be subject to the hen, not only in his hands, but 
also in the hands of his assignee with notice." 

A mortgage executed to a third person for money advanced to pay 
part of the purchase money will be superior to the vendor's imphed 
lien for the balance." 

The lien of the vendor is subordinate to the rights of a junior mort- 
gagee of the crop without notice." 

§ 68. As to what shall be sufficient notice, in order to charge a 
second purchaser, it has been held that a purchaser is bound to take 
notice of all liens shown to exist by the vendor's title deed." 

"Where the deed recites full payment of the consideration, the 
hen cannot be enforced against a purchaser for value without 
proving actual notice that the whole of the purchase money had not 

' In the matter of Howe, i Paige, I2g ; ' Butterfield v. Okie, 36 N. J. Eq. 482 ; 

Lane v. Ludlow, 6 Id. 316, n. ; Parks v. Bayley y. Greenleaf, 7 Wheat, 47. 
Jackson, 11 Wend. 442; Rockwell v. 'Butterfield v. Okie, 36 N. J. Eq. 

Hobby, 2 Sandf. Ch. g ; Robinson v. 482. 

Williams, 22 N. Y. 386 ; Lamberton v. ' " Fish v. Rowland, i Paige, 20 ; Shir- 
Van Voorhis, 15 Hun, 336. ley v. Sugar Refinery, 2 Edw. 505 ; 

'Spring V. Short, 90 N. Y. 538, 543. Champion v. Brown, 6 Johns. Ch. 402 ; 

See § 70. Fisk v. Potter, 2 Abb. App. Dec. 138 ; 

* Shirley v. Sugar Refinery, 2 Edw. 2 Keyes 64 ; Spring v. Short, 90 N. Y. 
505 ; Warren v. Fenn, 28 Barb. 333. 538 ; ZoU v. Carnahan, 83 Mo. 35. 

* Arnold v. Patrick, 6 Paige, 310 ; " Arnold v. Patrick, 6 Paige, 310. 
Champion v. Brown, 6 Johns. Ch. 398 ; " Neff v. Crumbaker, 4 Ohio St. 85. 
Hallock V. Smith, 3 Barb. 267; Burlin- "Wooten v. Bellinger, 17 Fla. 289. 
game v. Robbins, 21 Barb. 327 ; Petry " McRimmon v. Martin, 14 Tex. 318 ; 
V. Ambrosher, 100 Ind. 510 ; Porter v. Tiernan v. Thurman, 14 B. Mon. 277 ; 
Woodruff, 36 N. J. Eq. 174. Daughady v. Paine, 6 Minn. 452 ; Ste- 

' Payne v. Wilson, 74 N. Y. 348. phens v. Shannon, 43 Ark. 464 ; Stid- 

* Palmer v. Simpson, 69 Ga. 792. ham v. Matthews, 2g Ark. 650. 



§§ 69-70.] EQUITABLE MORTGAGES AND IMPLIED LIENS. 49 

been paid.' But when a deed shows upon its face that the purchase 
money is yet unpaid, any purchaser from the grantee is chargeable 
with notice of the vendor's lien.^ The lien may also be expressly re- 
served in the deed, and this will be notice.' 

Where the agent of a railroad company conveyed a parcel of land 
to the company with knowledge that a mortgage was already in ex- 
istence to secure the bonds of the corporation which would immedi- 
ately attach, it was held that the legal lien of the recorded mortgage 
would take precedence of the lien for unpaid purchase money.* 

§ 69. If the original vendor remains in open possession, 
this will be notice of his rights, especially if the purchaser shall have 
heard of an agreement between his vendor and the occupant," and 
generally any notice will be sufficient which ought to put the pur- 
chaser, as a reasonable man, upon inquiry." Thus, knowledge on the 
part of a subsequent purchaser, that some portion of the purchase 
money is unpaid, without knowing how much or how it is secured, 
is sufficient to put him upon inquiry and charge him with notice.' 

§ 70. When judgment will have priority. — A lien for unpaid 
purchase money will be inferior to the lien of a subsequent judg- 
ment if the judgment be recovered for money advanced by the cred- 
itor; in reliance upon an apparently unencumbered title,' or if a judg- 
ment which is an apparent lien is transferred to a honafide purchaser.' 
In such cases the judgment creditor will stand in equity as a quasi 
purchaser or mortgagee. A vendor relying upon his lien ought to 
reduce it to a mortgage, so as to give notice of it to the world. If 
he does not, he is in some degree accessory to the fraud committed'on 
the public by an act which exhibits the vendee as the complete owner 
of an estate on which he claims a secret lien." Eut a merely ordinary 
creditor who has given credit supposing that the debtor was the owner 
of property unencumbered and had ability to pay, and who is' mis- 

' Gordon v. Manning, 44 Miss. 756. " BriscoU v. Bronaugh, i Tex. 326. 

' Cordova V. Hood, 17 Wall, i ; Masich ' Manly v. Slason, 21 Vt. 271 ; Baum 

V. Shearer, 49 Ala. 226 ; Tydings v. v. Grigsby, 21 Cal. 176. 

Pitcher, 82 Mo. 379 ; Orrick v. Durham, 'Hulett v. Whipple, 58 Barb. 224; 

79 Mo. 179. Spring v. Short, 90 N.Y. 538, 543 ; Cut- 

' Davis V. Hamilton, 50 Miss. 213 ; ler v. Ammon, 65 Iowa, 281 ; Allen v. 

Foster v. Powers, 64 Tex. 247. Loring, 34 Iowa, 499. 

*Fisk V. Potter, 2 Abb. Ct. of App. ° Prec. in Chan. 478. 

Dec. 138 ; 2 Keyes, 64. "Per Marshall, C. J., in Bayley v. 

' Hopkins v. Garrard, 6 B. Mon. 66 ; Greenleaf, 7 Wheat. 46, 51. 
Hamilton v. Fowlkes, 16 Ark. 340. 
4 



50 MORTGAGES OF EEAL PROPERTY. t§§ 71-72. 

taken in tHs respect, does not acquire the rights of a party who ad- . 
vances money within the rule above stated. In relying upon the re- 
sponsibility of the apparent owner of real estate every creditor takes 
the chance of being mistaken, and unless a fraud has been committed 
by means of which a lien is created and a creditor is defrauded, such 
creditor occupies no different position than an ordinary creditor. The 
question as to the good faith of the parties in the transaction is a 
proper subject for consideration by the court, and in a case where a 
mortgage was executed long after the delivery of a deed to the mort- 
gagor, but pursuant to an agreement made at the date of the deed to 
secure the purchase money, such mortgage was held entitled to pri- 
ority over a judgment subsequently docketed.' 

EBMEDIES PEOPEE FOR AN EQUITABLE MOETGAGEE. 

§ 71. By suit in equity. — The remedy for the equitable mort- 
gagee is to enforce his lien by a proceeding in the nature of a suit in 
equity, and he may do this even though he has a remedy at law." He 
is not obliged to bring an action at law in the first instance,' and the 
fact that he has obtained a judgment upon the debt will not impair 
his right to enforce the lien.* The relief will consist in directing a 
sale of the land,' and the proceeding will resemble closely an action 
to foreclose a mortgage." 

§ 72. Parties to action. — The action may be brought by the per- 
son authorized to receive payment of the debt ' or his personal repre- 
sentatives,' and the vsddow '' and heirs at law of the vendee '° are neces- 
sary defendants. A person claiming adversely to the title is not a 
proper defendant." The administrator of the vendee having no in- 



' Spring V. Short, go N.Y. 538. notes ; Lord v. Wilcox, 99 Ind. 491 ; 

^ Mears v. Kearney, i Abb. N.C. 303. Chandler v. Chandler, 78 Ind. 417 ; i 

^ Bradley v. Bosley, i Barb. Ch. 125 ; Sugd. on Vend. 394. 

Pratt V. Clark, 57 Mo. 189 ; Campbell v. * Dubois v. Hull, 43 Barb. 26. 

Roach, 45 Ala. 667 ; Owen v. Moore, ' Perry v. Board of Missions of Al- 

14 Ala. 640; Richardson v. Baker, 5 J.J. bany, 102 N.Y. 99. 

Marsh (Ky,.), 323 ; Maryland Pub. Gen. ' Ross v. Shurtleff, 55 Vt. 177. 

Law C.ode^ i860, p. 99 ; High v. Batte, ' 2 Story Eq. Jur. § 1227. 

10 Yerg. (T.enn.) 186. In some States " Dayhuff v. Dayhuff, 81 111. 499. 

the plaintiff must first exhaust his legal ' McKay v. Green, 3 Johns. Ch. 56. 

remedies. Ford v. Smith, i MacArthur '° Jackson v. Hill, 39 Tex. 493; McKay 

(D.C.), 592 ; Pratt v. Van Wyck's E-x'r, v. Green, 3 Johns. Ch. 56. 

6 GiUand J.(M.d.)595; Gilman v. Brown, n Wells v. Francis, 7 Col. 396; Dial v. 

I Mason, 192; Smith's Lead. Cas. in Reynolds,6 Otto,34o; Croghan v. Miner, 

Eq. (Am. ed.), vol. i., pp. 366, 373, and 53 Cal. 15. 



§§73-76.] EQUITABLE MOKTGAGES AND IMPLIED LIENS. 51 

terest in tlie land need not be joined.' Since, as between the heir and 
the administrator the debt for purchase money is primarily charge- 
able upon the personal estate," it is believed that it would be proper, 
though not necessary to join the executor or administrator as a de- 
fendant. 

§ 73. Defenses. — The defenses appropriate in an action to fore- 
close a vendor's lien are those that would be proper in an action to 
foreclose a purchase-money mortgage. Failure to put the vendee in 
possession is a breach of the covenants for quiet possession and of 
warranty of title and constitutes a defense, as also is fraud in conceal- 
ing prior incumbrances.'' 

§ 74> Retaining possession. — If the equitable mortgagee be in 
possession of the premises, he may retain possession until his just 
claims be satisfied, and the proper way for the person owning the 
legal title to acquire possession is not by an action of ejectment, but 
by an action to redeem and for an accounting.* 

§ 75. Tender of deed before action to enforce lien for pur- 
chase money. — It is an open question as to whether a party can by 
action enforce as an equitable mortgage, a claim for the unpaid 
purchase money upon an executory contract for the sale of lands 
where he has an election of remedies, either by ejectment to recover 
the premises, or an action for the amount due on the contract." A 
judgment in such an action was sustained by the Court of Appeals 
when the objection was not made in the court below, and it was held 
that, conceding the remedy sought to be proper, it was not necessary 
for the plaintifi to show that he had tendered a deed before com- 
mencing his suit.' The rule would be otherwise, however, and a 
tender of a deed should be made before suit is brought if the vendor 
dies ; at least unless the heir or devisee of the vendor is made a party 
so as to be bound by the judgment. The reason of this is fouild in 
the fact that the right to the purchase money will be in the personal 
representatives of the vendor, while the power to give the convey- 
ance will be in his heir or devisee.' 



' McKay v. Green, 3 Johns. Ch, 56. ^ Payse v. McGuire,, 81 Ky. 608. 

2 Wright V. Holbrook, 32 N. Y. 587 ; * Chase v. Peck, 21 N.. Y. 581. 

Lamport v. Beeman, 34 Barb. 239 ; Liv- ' Freeson v. Bissell,, 63 N. Y. 168. 

ingston v. Newkirk, 3 Johns. Ch. 312 ; ' Id. 

Warner v. Van Alstyne, 3 Paige, 513. ' Thomson v. Smith, 6.3 N. Y. 301. 



CHAPTEE IV. 



WHO MAT MOETGAGE AND HOW. 



■WHAT MAY BE MORTGAGED. 

§ 76. Rules controlling conveyances ap- 
plicable, 

77. Mortgages of equitable interests. 

78. Mortgages of undivided interests. 

79. Description of the mortgaged real 

estate. 

80. Mortgages of lands held adversely. 

MORTGAGES EXECUTED UNDER POWERS. 

81. Power to sell does not confer 

power to mortgage. 

82. A power to mortgage includes in 

it, of necessity, a power to con- 
sent to the usual and customary 
provisions which are commonly 
inserted in mortgages. 

83. A devise of lands to executors or 

other trustees, 

84. A conveyance of land in trust to 

mortgage. 

85. Where a mortgage is executed by 

an executor or other trustee for 
a part of the purchase money. 

EXECUTION AND DELIVERY. 

86. Execution and acknowledgment. 

87. Neither a grant nor a mortgage 

can take effect without a grantee 
being named in it. 

88. Alterations after execution. 

89. Delivery, 
go. Acceptance. 

91. Delivery in escrow. 

THE DEBT SECURED. 

92. Debt must be valid. 

93. Mortgage lien must be complete at 

its inception. 

94. If the defeasance is in writing, it 

cannot be enlarged by subsequent 
parol agreement. 



I 95. The condition of the mortgage 
• should give reasonable notice of 
the amount of the incumbrance. 

96. Over-stating debt a badge of fraud. 

97. Inaccuracies in description of debt. 

98. A note is sufficiently identified as 

the one secured by a mortgage. 

99. Parol evidence to aid description 

of debt. 
100. A mortgage may secure future or 

contingent obligations, and it is 

not necessarily a security for a 

debt, 
loi. The construction of the condition 

of a mortgage depends upon the 

same rules which control other 

classes of writings. 

102. Personal covenant to pay amount 

secured. 

103. The covenant to pay must be spe- 

cific and distinct. 

MORTGAGES OF PARTNERSHIP REAL 
ESTATE. 

104. Partnership real estate chargeable 

with partnership debts. 

105. Mortgage by one partner of his in- 

terest in partnership real estate. 

106. Notice that real estate is partner- 

ship assets. 

107. As between the partners. 

108. Dower in partnership real estate. 

109. Equities of individual partners and 

their several creditors, 
no. What real estate is partnership 
assets. 

111. Power of one partner to mortgage 

firm real estate. 

112. Mortgages by limited partnerships. 

MORTGAGES FROM HUSBAND TO WIFE. 

113. Valid in equity if made direct frqm 

husband to wife. 



76.] 



WHO MAY MORTGAGE AND HOW. 



53 



MORTGAGES BY CORPORATIONS. 

^114. Power to mortgage. 

115. Executing mortgage by corpora- 

tion. 

1 16. Mortgages by corporations organ- 

ized under the Manufacturing 
Act. 

117. Form of assent of stockholders. 

118. Who must sign assent. 

119. When assent must be made and 

filed. 

120. Act of 1875 as to mortgages prior 

to that date. 

121. Purchase-money mortgage by cor- 

poration. 

122. Who may take advantage of lack 

of assent of stockholders. 

123. What debts may be secured by 

manufacturing companies. 

124. Gaslight companies. 

125. Mortgages by clubs and societies. 

126. Mortgages of the lands of religious 

corporations. 

127. Supervisory power of the court. 

128. When order of court is neces- 

sary. 

129. Where a mortgage is given to se- 

cure a debt legally contracted. 

130. By whom application to be made. 

131. Mortgages by charitable societies. 

MORTGAGES BY NATIONAL BANKS. 

132. Provision of statute. 

133. Later decisions. 



MORTGAGES OF THE LANDS OF INFANTS. 

§134. Ratification of mortgage made 
during infancy. 

135. Disaffirmance of a mortgage made 

during infancy. 

136. Subrogation. 

137. A mortgage executed by a guard- 

ian of an infant to himself. 

138. Proceedings under the statute to 

mortgage lands of infants. 

139. Proceedings under this statute must 

strictly conform with the letter of 
the law. 

140. Costs in proceedings to mortgage 

lands of infants, lunatics, etc. 

INSANE PERSONS. 

141. A mortgage executed by a person 

of unsound mind. 

142. Mortgages of the lands of lunatics 

and habitual drunkards. 

143. Jurisdiction of the court over lands 

of insane persons. 

MORTGAGES OF LANDS OF DECEASED 
PERSONS TO PAY DEBTS. 

144. Jurisdiction of surrogate. 

145. The heir or devisee may sell or 

mortgage. 

MORTGAGES OF BURIAL AND CEMETERY 
LOTS. ■ 

146. Cancelling exemption of private 

burial lots. 

147. Lots in public cemeteries. 

148. Mortgages of burying-grounds by 

church or religious corporations. 



WHAT MAT BE MOETGAGED. 

§ 76. Rules controlling conveyances applicable. — A mortgage 
being a conveyance as a security for the payment of a debt or the 
performance of an obligation, it follows that no mortgage can be valid 
in all its parts unless the conveyance is such as to transfer some in- 
terest or estate, and the debt or obligation is one that the law will 
recognize. The conveyance is to be judged by the law of the place 
where the land is located,' but the validity of the debt may depend 
upon the law of the place where the contract was made or is to be 
performed.' 

Since every conveyance made as security for a debt or obligation is 



'Hosford V. Nichols, i Paige, 220; ''Cope v. Wheeler, 53 Barb. 350 ; s, C. 
Cutler V. Davenport, i Pick. 8l. affi'd 41 N. Y. 303. 



54 MOEXaAGBS OF EEAL PEOPERTT. [§ 77. 

a mortgage, it follows that any property which may be conveyed may 
also be mortgaged, and any present interest, legal or equitable, in real 
or personal property; which can be the subject of a sale, may be the 
subject of a mortgage.' For example, the interest of a person in 
possession of land under a parol contract of sale, may be sold, and it 
may therefore be mortgaged,^ and a mortgage security may itself be- 
come the subject of mortgage by being assigned as security for a 
debt of the mortgagee.' 

A mortgage of rents issuing out of land under a grant in fee, re- 
serving rent, creates a lien on incorpolreal hereditaments and is not a 
mere chose in action or personal property, and is to be treated as a 
mortgage of real estate and not of chattels.* 

§ 77. Mortgages of equitable interests. — A vested equitable Hfe 
estate is such an interest in land as will pass by a mortgage of the 
same ; and where such an estate is conveyed or encumbered by the 
cestui que trust without the concurrence of the trustee holding the 
legal title, it will become the duty of the trustee to recognize the 
rights of the grantee or mortgagee. But the purchaser under such a 
mortgage will take only such rights as the mortgagor had, to wit, a 
life estate.'^ 

Where a testator directed his executor by his wiU to sell his real 
estate, and, after having set aside a specified sum for his widow, to 
divide the remainder among his children ; and, before the executor 
sold the real estate, a son of the testator mortgaged his interest there- 
in, it was held that the mortgage by the son was to be treated as an 
equitable assignment of his interest in the proceeds of the sale." 

A mortgage by a cestui que tomst, assuming to mortgage real estate 
the title to which is in the trustee, creates no lien on the realty, but 
the cestui que trust having the right to rents and profits, the mort- 
gage is a valid lien upon them. The decree on the foreclosure of 
such a mortgage will direct the trustee to apply the net rents to the 
payment of the debt, and the trustee is, therefore, a necessary party.' 



'Crane v. Turner, 7 Hun, 357, affi'd 'Hoyt v. Martense, 16 N. Y. (2 Smith) 

67 N. Y. 437 ; Wilson V. Wilson, 32 Barb. 231. 
328. * Van Rensselaer v. Dennison, 35 N. 

'Crane v. Turner, 7 Hun, 357, affi'd Y. 393, 401. 
67 N. Y. 437 ; Sinclair v. Armitage, 12 * Bryan v. Howland, 98 111. 625 ; Bur- 

N. J. Eq. 174 ; Jones v. Lapham, 15 kam v. Burk, 96 Ind. 270. 
Kans. 540; Langlin v. Braley, 25 Kans. 'Horst v. Dague, 34 Ohio St. 371. 
147. ' Wilson V. Russ, 17 Fla. 6gi. 



§§ 78-79.] WHO MAY MORTGAGE AND HOW. 55 

§ 78. Mortgage of undivided interest. — ^The Code of Proced- 
Tire ' following the Eevised Statutes,'' provides as to actions for parti- 
tion as follows : " The plaintiff may, at his election, make a creditor 
having a lien on an undivided share or interest in the property, a de- 
fendant in the action. In that case he must set forth the nature of 
the lien, and specify the share or interest to which it attaches. If 
partition of the property is made, the lien, whether the creditor is or 
is not made a party, shall thereafter attach only to the share or inter- 
est assigned to the party upon whose share or interest the lien at- 
tached ; which must be first charged with its just proportion of the 
costs and expenses of the action in preference to the Hen." ' 

Independent of our statute, a mortgagee of an undivided interest 
would not be bound by the partition between the co-tenants to which 
he was not a party or assented.* 

§ 79. Description of the mortgaged real estate. — The same 
rules will control in construing the description of real estate in a 
mortgage that would apply if it were an absolute grant. In answer- 
ing the question as to whether a mortgage is incapable of taking ef- 
fect and void by reason of vagueness and uncertainty in the descrip- 
tion of the mortgaged premises, we are to regard the rule that a deed 
should never be held to be void when the words may be applied to 
any intent to make it good, and to that end they are to be taken most 
strongly against the grantor, for he should not be allowed to say that 
a description framed by himself was so indefinite that, upon an en- 
forcement of the mortgage, no title to the property could be ac- 
quired." It is enough, therefore, if, by any particular in the descrip- 
tion, the thing granted can be sufficiently ascertained to enable the 
court to say that the words chosen by the parties were intended to 
relate to it ; and for that purpose we may go beyond the face of the 
deed if it refers to some subject matter in respect to which we can 
locate and apply the description.' A general description of all of the 
land owned by the mortgagor in a certain county is sufficient, and 
the purchaser at a sale under foreclosure of such a mortgage can re- 
cover in ejectment.' And a mortgage of " all my property," or " all 

■ Code of Civ. Pro. § 1540. " Per Danforth, J., in The People ex 

^"2 R. S. 318, §§ 8, 9 ; Laws 1830, ch. rel. Myers v. Storms, 97 N. Y. 364; 

320, § 41. Coleman v. Manhattan Beach Imp. Co., 

2 Harwood v. Kirby, i Paige, 469. 94 N. Y. 229 ; Thomson v. Building 

* Jackraan v. Beck, 37 Ark. 125. Ass'n, 103 Ind. 279. 

' Jackson v. Gardner, 8 Johns. 394 ; ' Durant v. Kenyon, 32 Hun, 634 ; 

Tryon v. Sutton, 13 Cal. 490. Starling v. Blair, 4 Bibb. (Ky.) 288. 



06 MORTGAGES OF EEAL PEOPEETT. [§ 80. 

my lands wherever situated," is not void because of the generality of 
the description.' So a description of land as "all my right, title, 
interest, and claim in and to the farm of A. B., deceased," is suffi- 
cient.' And a description as follows has been held sufficient : " Cer- 
tain land situate in Bridgeport, and described as follows, it being our 
home farm, containing about 180 acres." ' 

Omitting to name the state, county, or township in the description 
of premises in a mortgage will not invalidate the instrument, where 
other adequate elements of identification exist ; and it is not essen- 
tial that the property should be so described as to identify it without 
the aid of extrinsic evidence, but it is always competent to connect 
the written description with the material subject matter by proof of 
the surrounding circumstances.* 

In a suit in equity for foreclosure it is not competent for the mort- 
gagor to prove by parol evidence that he intended to convey an in- 
terest in the land different from that specified in the mortgage. ° 

A mortgage containing a defective description, if not so uncertain 
that it cannot be rendered certain by averment, may be reformed and 
foreclosed against a subsequent purchaser for value without actual 
notice, such description being sufficient to put the purchaser on in- 
quiry." 

§ 80. Mortgages of lands held adversely. — Every grant of lands 
is absolutely void, if at the time of the delivery thereof, such lands 
shall be in the actual possession of a person claiming under a title ad- 
verse to the grantor. But every person having a just title to lands 
of which there shall be an adverse possession may execute a mortgage 
on such lands ; and such mortgage, if duly recorded, shall bind the 
lands from the time the possession thereof shall be recovered by the 
mortgagor or his representatives. And every such mortgage shall 
have preference over any judgment or other instrument, subsequent 
to the recording thereof ; and if there be two or more such mort- 
gages, they shall severally have preference according to the time of 
recording the same respectively.' 

' Wilson V. Boyce, 92 U. S. 320 ; ' Cowley v. Shelby, 71 Alab. 122 ; 

Usina v. Wilder, 58 Ga. 178. Shepard v. Shepard, 36 Mich. 173. 

' Bailey v. Alleghany Nat. Bank, 104 * Pence v. Armstrong, 95 Ind. 191 ; 

Pa. St. 425. Bunker v. Anderson, 32 N. J. Eq. 35. 

^ Howe's Ex'rs v. Towner, 55 Vt. 315. But see Thomson v. Wilcox, 7 Lans. 

■• Slater v. Breese, 36 Mich. 77 ; Rob- 376. 

inson V. Brennan, 115 Mass. 582; Stock- ' i R. S. 739, §§ 147, 148. A mort- 

well V. The State, loi Ind. i. gage of lands held adversely executed 



§§81-84.] WHO MAY MORTGAGE AND HOW. 57 

Where a mortgagee was in possession of the mortgaged property at 
the time of the execution of the mortgage, but was afterward ousted, 
it was held that these statutes did not operate to invalidate an assign- 
ment of the mortgage executed after the time of such ouster.' 

M©ETGAGES EXECUTED UNDEE POWERS. 

§ 81. Power to sell does not confer power to mortgage. — Al- 
though a mortgage is a defeasible conveyance, or a conveyance made 
as security, a power to sell, whether contained in a will or elsewhere, 
does not, in itself, confer a power to mortgage." But such a power 
may be derived by implication from other parts of an instrument 
creating a power to sell. Thus, when A receives a deed with power 
to sell for the benefit of B, and at the same time executes a mortgage 
for the purchase money, the mortgage is valid.' 

§ 82. A power to mortgage includes in it, of necessity, a 
power to consent to the usual and customary provisions which 
are commonly inserted in mortgages, and among these is a clause 
authorizing the mortgagee to sell on. default of prompt payment.* 
On the same principle, a clause imposing on the mortgagor the duty 
of keeping the buildings on the mortgaged premises insured, would 
be proper ; as also would be a clause making the term of credit 
depend on the prompt payment of interest. These latter clauses 
would also properly be inserted by a person authorized to borrow 
money under a general authority to bargain with the lender as to the 
security to be given and the term of credit. 

§ 83. A devise of lands to executors or other trustees to be 
sold or mortgaged, where the trustees are not also empowered to re- 
ceive the rents and profits, does not vest any estate in the trustees ; 
but the trust is vahd as a power, and the lands descend to the heirs, 
or pass to the devisees of the testator subject to the execution of the 
power.' 

§ 84. A conveyance of land in trust to mortgage for the bene- 

by person out of possession is void in 58 Micii. 246 ; Vandeveer v. Conover, 

Alabama. Vandiveer v. Sticlsney, 75 40 N.J. Eq. 161; Smith v. Hutchinson, 

Ala. 225. 108 111. 662. 

' Tobias v. The Mayor, etc., of N. Y., ' Coutant v. Servoss, 3 Barb. 128. 

17 Hun, 534. * Wilson v. Troup, 7 Johns. Ch. 25 ; 

" Blopmer v. Waldron, 3 Hill, 361, s. c. affi'd 2 Cow. igs ; Fox v. Lipe, 24 

overruling dictum in Williams v. Wood- Wend. 164. 

ard, 2 Wend. 487, 492; Jaffrey v. Hursh, » i R. S. 727, § 56. 



58 MORTGAGES OF KEAIi PEOPERTT. [§§85-86. 

fit of creditors is not one of the trusts authorized by the Kevised 
Statutes, and therefore no estate will vest under it in the trustees.' 

§ 85. Where a mortgage is executed by an executor or other 
trustee for a part of the purchase money of the land covered by 
it, no question of authority to execute the mortgage can be raised with- 
out also repudiating the conveyance, since the contract must be taken 
as a whole, and the benefits received under it cannot be retained by a 
cestui que trust while at the same time the burdens it imposes are 
denied." 

"Where a person had title to an undivided moiety of land and power 
to convey, without any legal or equitable interest in the balance, a 
mortgage by which he assumed to pledge the whole, but which did not 
recite the power, was held to afEect only the part to which he had 
title.' 

A person taking a mortgage executed under a power of attorney is 
chargeable with notice of the extent and limitations of the power.* 

EXECUTION AND DELIVEET. 

§ 86. Execution and acknowledgment. — It is provided by the 
Kevised Statutes, that every grant in fee or of a freehold estate, shall 
be subscribed and sealed by the person from whom the estate or in- 
terest conveyed is intended to pass, or his lawful agent ; if not duly 
acknowledged, previous to its delivery, according to the provisions of 
the statutes, its execution and delivery shall be attested by at 
least one witness; or if not so attested, it shall not take effect as 
against a purchaser or incumbrancer, until so acknowledged.' This 
provision is equally applicable to mortgages." 

In cases where from lack of a seal,' or for want of proper acknowledg- 
ment,' or from any other technical cause, an effort to execute a mort- 
gage fails of legal validity, it may nevertheless be enforced as an 
equitable lien." 

A mortgage does not become void because the name of the mort- 

' Rogers v. De Forest, 7 Paige, 272 ; rison, 31 Barb. 155 ; Wood v. Chapin, 

Barnum v. Hempstead, 7 Paige, 568 ; 13 N. Y. 509. 

Darling v. Rogers, 22 Wend. 483 ; Irv- " White v. Leslie, 54 How. 394 ; Porter 

ing V. De Kay, 9 Paige, 52i,afB'd 5 Den. v. Muller, 53 Cal. 677. 

646. ' Erwin v. Siiuey, 8 Ohio St. 509. 

'Skelton v. Scott, j8 Hun, 375. 'Maine v. Alexander, 9 Ark. 112; 47 

' Shirras v. Craig, 7 Cranch, 34. Am. Dec. 732. 

* Kingsland v. Chetwood, 39 Hun, 602. "See ante, Chap. lU., §§4610 51 ; Du 

' I R. S. 738, § 137 ; Center v. Mor- Val v. Johnson, 39 Ark. 182. 



§§ 87-88.] "WHO MAT MORTGAGE AND HOW. 59 

gagee is not stated accurately if the person intended can be sufficiently 
identified. "Where G. and W. were partners under the name of the 
Chicago Lumber Co., 'and received a mortgage by the latter name, it 
was held enforceable by them.' 

§ 87. Neither a grant nor a mortgage can take effect without 
a grantee being named in it.' So an insttument in the form of a 
mortgage, but containing the name of no mortgagee,- does not become 
effectual by delivery to one who advances money on the agreement 
that he shall hold the paper as security for a loan.' But if such an 
instrument is prepared and delivered by the mortgagor to a person 
authorized to use it to obtain money for the mortgagor, and to insert 
th.e name of the mortgagee, this can be done and the mortgage will 
be valid.* And, in general, any alteration may be made in a mort- 
gage after its execution, provided it be done with the authority and 
consent of the mortgagor.' 

Where a mortgage is executed in blank, an authority to fill in the 
name of a mortgagee may be implied where the use is made of the 
instrument which was authorized by the mortgagor." But where a 
different use is made of the instrument from that authorized by the 
mortgagor, it will be void and will create no lien, and this rule has 
peculiar force when the mortgagee knows that his name was filled in 
after execution and without the knowledge of the mortgagor.' 

Where a bond and mortgage were executed with the name of the 
mortgagee blank, and delivered to a third person with authority to 
raise money for the mortgagor, and he deKvered them for his own 
benefit, filling in the name of a mortgagee, it was held that they were 
utterly void as against the mortgagor.' 

The record of a mortgage from which the name of the mortgagee 
is omitted does not charge a subsequent purchaser with notice thereof." 

§ 88. Alterations after execution. — If a mortgage is altered by 
a mere stranger while it is out of the possession of the mortgagee, 

' Chicago Lumber Co. v. Ashworth, 26 * Hemmenway v. Mulock, 56 How. 38. 

Kans. 212. ' Knapp v. Maltby, 13 Wend. 587 ; 

' A mortgage for the benefit of a third Woolley v. Constant, 4 Johns. 54 ; Penny 

party intended to run to a trustee, from v. Corwithe, 18 Johns. 499 ; ex parte 

which the name of the trustee is omitted, Kerwin, 8 Cow. 118 ; Texvia v. Evans, i 

is not void for such omission if it con- Anst. 228. 

tains the means of ascertaining the trus- ' Van Etta v. Evenson, 28 Wis. 33. 

tee ; Hitesman v. Donnel, 40 Ohio St. ' Ayers v. Probasco, 14 Kans. 175. 

2S7. " Cady V. Jennings, 17 Hun, 213. 

^ Chauncey v. Arnold, 24 N. Y. 330. " Dicke v. Wright, 49 Iowa, 538. 



60 MOETaAG-ES OF KEAL PEOPEETT. [§ 89. 

and without his knowledge or consent, this does not work a destruc- 
tion of it. But if an alteration is made without the consent of the 
party against whom it is sought to be enforced, either by the plaintiff 
who brings the action upon it, or by some other person while the in- 
strument is in the possession or custody of the plaintiff, such altera- 
tion will discharge the original instrument without substituting any 
new contract or obligation in its place.' 

This principle has been applied where a mortgage executed by a 
married woman was altered by her husband by changing the name 
of the mortgagee without her express consent. The husband de- 
rived no authority from the marital relation nor from the possession 
of the instrument to dispose of the mortgage otherwise than accord- 
ing to its strict terms." So, a mortgage was held void and incapable 
of reformation which was made by a married woman to secure her 
husband's debt, and which the husband assumed to correct in respect 
to an erroneous description.^ 

Where a mortgage is altered after execution, either by changing 
the description of the mortgaged property ' or by inserting an addi- 
tional obligation,' it becomes entirely void. And the doctrine of 
equitable subrogation wiU not be apphed to relieve the mortgagee." 

§ 89. Delivery. — A valid delivery of a mortgage may be made to 
any one of two or more persons interested in its enforcement. Thus, 
where upon a dissolution of a copartnership, one partner assumed the 
payment of a firm note and executed a mortgage to secure its pay- 
ment, and as indepanity to the other partner against his liability 
thereon, a delivery of the mortgage to the firm creditor was held 
sufficient as a delivery to his copartner.' 

A mortgage takes effect" from its delivery and not from its date.' 

The destruction of a mortgage after delivery will not impair its valid- 
ity as against the mortgagor and others claiming under him with notice. 
This principle was applied in a case where a purchase-money mortgage, 
after being recorded, was destroyed by the wife of the mortgagee." 

' Jackson v. Malin, 15 Johns. 297 ; * Perean v. Frederick, 17 Neb. 117. 

Rees V. Overbaugh, 6 Cow. 746 ; Lewis ' Johnson v. Moore, 33 Kans. 90. 

V. Payn, 8 Id. 71 ; Waring v. Smyth, 2 * Guckenheimer v. Angevine, 81 

Barb. Ch. 119 ; Pigott's Case, 11 Coke, N. Y. 394 ; Johnson v. Moore, 33 Kans. 

27 ; Shep. Touch. 69. 90. 

« Smith V. Fellows, 41 N. Y. Super. (9 ' Conwell v. McCowen, 81 111. 285. 

J. & S.) 36. ' Id. 

' Marcy v. Dunlap, 5 Lans. 365; John- ° Sloan v. Holcomb, 29 Mich. 153. 
son V. Moore, 33 Kans. 90. 



§§90-91. J WHO MAT MOETGAGE AKD HOW. 61 

If a mortgage is not Toluntarily delivered, no title, passes, though 
the mortgagor may by his carelessness in permitting the mortgagee 
to gain possession of the mortgage, be estopped from denying the 
validity of the delivery as against third persons claiming by purchasfe 
from the mortgagee.' 

§ 90. Acceptance. — There must not only be a mortgagee in order 
to constitute a valid mortgage, but the mortgage must also be accept- 
ed by him." Slight evidence of an acceptance will ordinarily be suf- 
ficient, since the contract is presumptively beneficial, and if it be 
delivered to a third person for the benefit of the niortgagee, an ac- 
ceptance will be implied from his conduct in subsequently claiming 
rights under it.' 

"Where a mortgage was written and signed by the mortgagor, and 
was filed by him in the recorder's office for record, and it was subse- 
quently found in the mortgagee's possession, this was held sufficient 
prvfna facie evidence of a delivery.* And, in a similar case, but 
where the mortgagee never had possession of the instrument, delivery 
was inferred.' So, where the mortgagor who delivered the mortgage 
to the recording officer was shown to have received the consideration 
therefor." 

§ 91. Delivery in escrow. — ^Where a mortgage is placed in the 
custody of a third person to deliver to the mortgagee, on the happen- 
ing of a specified event, no valid delivery can be made until the con- 
dition imposed is satisfied, and if delivered before that is done, the 
mortgage cannot be enforced.' "Where a mortgage was left with a 
firm of attorneys acting for both parties, to be dehvered only on the 
consent of both, and there was a conflict of testimony as to whether 
such consent was ever had, the fact that the mortgagee was found 
in possession of the mortgage, and the mortgagor in possession of an 
instrument executed by the mortgagee, to show what the mortgage 
was given for, was held to be decisive, and evidence offered by the 
mortgagor to show that the mortgage was given to defraud his cred- 
itors, was excluded^^ 

I Fisher v. Beckwith, 30 Wis. 55 ; s. c. ' Elsberry v. Boykin, 65 Ala. 336. 

II Am. R. 546. * Connard v. Colgan, 55 Iowa, 538. 

' Freeman v. Peay, 23 Ark. 439. ' Chipman v. Tucker, 38 Wis. 43 ; s. 

' Lady Superior v. McNamara, 3 Barb. c. 20 Am. R. i ; Powell v. Conant, 33 

Ch. 375 ; Souverbye v. Arden, i Johns. Mich. 396 ; Gressinger v. Dessenburgh, 

Ch. 240 ; Church v. Gilman, 15 Wend. 42 Mich. 580 ; Thompson v. White, 48 

656 ; Ensworth v. King, 55 Mo. 477. Conn. 509. 

* Haskill V. Sevier, 25 Ark. 152. " Hess v. Final, 32 Mich. 515. 



62 MORTGAGES OF EEAL PEOPERTT. [§§92-93. 

A mortgage has no efficacy if its delivery depends upon a condition 
precedent which is to be performed after the death of the mortgagor.^ 

THE DEBT SECUEED. 

§ 92. Debt must be valid. — The debt being the principal, and the 
mortgage lien merely the security for it, there can be no YaKd mort- 
gage independent of a valid debt. So, a deed in the nature of a 
mortgage to secure a bargain, which is contrary to the policy of the 
law, will be void." 

Where the rights of creditors do not interfere, a mortgage may be 
valid as against all persons but the mortgagor, though given vrithout 
consideration. So, where a father made a voluntary provision for his 
child by a mortgage, this was held as valid as against his heirs, as a 
transfer for a valuable consideration.' 

If a mortgage is made to secure debts arising out of several trans- 
actions which can be separated, and some are legal while others are 
not, the mortgage will be valid for that part of the debt which is free 
from illegality." This was so held where a part of the debt sought 
to be secured was for a sale of Hquor in violation of a statute.' 

A mortgage given for a vaHd debt is good although the purpose 
of the mortgagor in executing it was to defraud his other creditors." 

§ 93. Mortgage lien must be complete at its inception. — A 
mortgage made to secure one debt cannot, by parol, afterward be 
made to stand for a new or different debt, even between the parties ; 
and the cases which recognize the admissibility of parol testimony to 
establish the actual contract made between the parties at the time of 
the grant, must be distinguished from those in which attempts have 
been made to enlarge the scope of the mortgage after its inception.' 
The grant must be in writing under seal, and must comply with all 
of the formalities prescribed by law for absolute conveyances . of 
land ; and while the defeasance -may rest in parol and may provide 

' Taft V. Taft, (Mich.), 26 Northwest- * Feldman v. Gamble, 26 N. J. Eq. 

ern Rep. 426 ; 33 Alb. L. J. 264, in which 494. 

case there is an elaborate examination of ' Shaw v. Carpenter, 54 Vt. 155 ; s. c. 

the authorities on conditional delivery 41 Am. R. 837. 

and delivery in escrow ; Latham v. * Billings v. Billings, 31 Hun, 65. 

Udell, 38 Mich. 238 ; Wallace v. Harris, 'Taylor v. Post, 30 Hun, 446 ; Hughes 

32 Id. 380. V. Johnson, 38 Ark. 285 ; Stoddard v. Hart, 

2 Gilbert v. Holmes, 64 111. 548. 23 N. Y. 556 ; Hubbell v. Blakeslee, 8 

^Bucklin V. Bucklin, r Abb. App. Cas. Hun, 603; Bank of Utica v. Finch, 3 

242. Barb. Ch. 293. 



§§94-95.] WHO MAT MORTGAGE AND HOW. 63 

for future advances or for almost any kind of present or future obli- 
gation, the agreement made at the time of the grant must control all 
of the subsequent dealings of the parties with the security.' 

§ 94. If the defeasance is in writing, it cannot be enlarged by 
subsequent parol agreement.^ So a mortgage originally given to 
secure an indebtedness for one firm cannot, by parol, be extended to 
secure an obligation to a new firm.' 

An agreement indorsed after its maturity upon a note secured by 
mortgage, by which the rate of interest is increased, is a personal 
covenant merely, and is not secured by the lien, even against the 
mortgagor,* though an agreement in writing to that effect for a valu- 
able consideration has been enforced where no rights of third persons 
have intervened.' 

An agreement between the mortgagor and mortgagee, tending to 
increase the mortgage, will always be void against a junior incum- 
brance." 

As between the parties, and to prevent fraud, the courts have 
sometimes refused to give rehef to a mortgagor except on condition 
of his doing equity, even where this practically resulted in enforcing 
a parol agreement, by which the lien of a mortgage was extended 
after its inception.' 

§ 95. The condition of the mortgage should give reasonable 
notice of the amount of the incumbrance, in order that junior in- 
cumbrancers and purchasers may ascertain from the record the extent 
of the lien claimed under it. It has even been held in some cases in 
Connecticut that reasonable definiteness of description is essential 
where the amount of the debt is liquidated or capable of ascertain- 
ment at the time of the execution of the mortgage." But no such 

' See Chap. VI. as to effect of agree- * Smith v. Graham, 34 Mich. 302. 

ment for further advances made after * Gardner v. Emerson, 40 111. 296 ; 

execution of mortgage ; Chap. VII. as to Coombs v. Jordan, 3 Bland Ch. (Md.) 

extension of time by renewal of notes 284 ; 22 Am. Dec. 236 ; Jones v. Brogan, 

secured by mortgage; Chap. XI. as to 29 N. J. Eq. 139; Perrin v. Kellogg, 38 

reissue of paid mortgage. Mich. 720 ; Mitchell v. Coombs, 96 Penn. 

'Hughes V. Johnson, 38 Ark. 285; St. 430 ; Schiffer v. Feagin, 51 Ala. 335. 

Morris v. Tillson, 81 111. 607 ; Savage v. ' Stone v. Lane, 92 Mass. (10 Allen) 

Scott, 45 Iowa, 130; Bank of Utica v. 74. 

Finch, 3 Barb. Ch. 293 ; 49 Am. Dec. * Pettibone v. Griswold, 4 Conn. 158 ; 

175. s. c. 10 Am. Dec. 106 ; Stoughton v. 

^ Taylor v. Post, 30 Hun, 446. Pasco, 5 Conn. 442 ; s. c. 13 Am. Dec. 

* Spear v. Hadden, 31 Mich. 265 ; Ha- 72 ; Booth v. Barnum, 9 Conn. 286 ; s. 

ven V. Jones, 45 Mich. 253. c. 23 Am. Dec. 389 ; Hart. v. Chalker, 



64 MOETGAOES OF HEAL PEOPEETT. [§§ 96-97. 

doctrine has ever been approved in this State, and a mortgage is 
valid if it contains within itself a description of the debt or refers to 
some other paper or to some other facts outside of any paper from 
which the extent of the claims of the mortgagee can be ascertained. 
A truthful statement of the debt is desirable, since any attempt at con- 
cealment or misstatement will be material if questions of fraud are 
raised.' 

§ 96. Over-stating debt a badge of fraud. — A mortgage given 
to secure a debt actually due, but drawn for a larger sum, with intent 
on the part of both parties to the instrument to defraud or delay 
creditors, may be adjudged void at the instance of creditors." In 
the absence of explanatory evidence, over-stating the debt is a badge 
of fraud and may, in itself, be sufficient to establish a fraudulent in- 
tent so as to avoid the mortgage as to existing creditors." The burden 
of establishing the honesty of the transaction is thereby cast upon the 
person claiming under, the mortgage,* but it is not conclusively fraud- 
ulent if it appears that it was not made to defraud other creditors.' 

Knowledge by the mortgagee that his debtor is trying to magnify 
his liabilities and wants him to take a mortgage for a sum so large 
that, if his other creditors should regard it as an honest security, his 
lands would be put effectually beyond their reach, makes it his duty 
to inquire as to his debtor's object, and failure to do so will vitiate 
such a mortgage m toto, though partly founded on a good considera- 
tion." 

§ 97. Inaccuracies in description of debt. — The liabiKty intend- 
ed to be secured should be sufficiently described in the mortgage,' but 



14 Conn. 77 ; Merrill v. Smith, 18 Conn. v. Scott, 55 Iowa, 114 ; Butts v. Pea- 

257 ; 46 Am. Dec. 315 ; Bramhall v. cock, 23 Wis. 359 ; Rice v. Morner, 64 

Flood, 41 Conn. 68 ; Stearns v. Porter, Wis. 599 ; Lynde v. McGregor, 95 Mass. 

46 Conn. 313 ; Bullock v. Battenhousen, 172. 

108 111. 28. * Carson v. Byers, 67 Iowa. 606 ; Lom- 

' Per Marshall, Ch. J., in Shirras v. bard v. Dpws, 66 Iowa, 243. 

Craig, 7 Cranch, 34 ; Truscott v. King, ' Bush v. Bush, 33 Kans. 556 ; Whit- 

6 N. Y. (2 Seld.) 147 ; McKinster v. tredge v. Edmunds, 63 N. H. 248 ; Wood 

Babcock, 26 N. Y. 378 ; Bumpas v. Dat- v. Scott, 55 Iowa, 114 ; Berry v. O'Con- 

son, 7 Humph. (Tenn.) 310 ; 46 Am. Dec. nor, 31 Alb. L. J. 357 ; Noyes v. Patrick, 

81 ; Goff V. Rogers, 71 Ind. 459. 58 N. H. 618 ; Berry v. O'Connor, 33 

° Heintze v. Bentley, 34 N. J. Eq. Minn. 29 ; Miner v. Sheehan, 30 Minn. 

562. 419 ; TuUey v. Harloe, 35 Cal. 302. 

' Taylor v. Wendling, 66 Iowa, 562 ; ' Holt v. Creamer, 34 N. J. Eq. 181 ; 

Tripp V. Vincent, 8 Paige, 176 ; Daven- Russell v. Winne, 37 N. Y. 596. 

port V. Cummings, 15 Iowa, 219 ; Wood ' Thomas v. Olney, 16 111. 53. 



§§98.] WHO MAY MORTGAGE AKD HOW. 65 

where there was an accidental omission to insert in a mortgage the 
amount of the bond it was intended to secure, it was Iield that this 
did not invalidate the mortgage or postpone its lien to that of a sub- 
sequent mortgage.' Even an intentional omission to set out in the 
mortgage the amount of a note which it is intended to secure, will 
not subordinate it to creditors having no actual notice of the mort- 
gage." A mortgage has been held valid when made to secure a spec- 
ified debt amounting to a certain sum " or thereabout," the debt being 
a little larger than the amount named." Clerical inaccuracies in the 
description of the debt will not afEect the lien of the mortgage as 
against the mortgagor or his subsequent judgment creditors, provided 
the debt is clearly identified as the one intended to be secured.' 

A valid mortgage may be made for the payment of money without 
particularly describing the writing which forms the evidence of the 
debt, and even without giving any independent evidence thereof.^ 
If an attempt is made to describe the evidence of debt in the recitals 
in the mortgage, it is not necessary that all of the particulars of the 
paper should be set forth, and it is enough if the paper produced by 
the mortgagee appears with reasonable certainty to be the one in- 
tended.° 

Where a mortgage was executed by several persons on property 
owned jointly to secure the mortgagee on a recognizance and contained 
also the following clause : " and pay him all sums of money now due 
or that may be due from us hereafter," and each of the mortgagors 
owned separate debts to the mortgagee, but did not know, through 
their own neglect, that the special clause was in the mortgage, it was 
held that their debts were secured.' 

§ 98. A note is sufficiently identified as the one secured by a 
mortgage when it is identical with the one described in the mort- 
gage in dates, amount, and in the names of the maker and payee, al- 
though in the mortgage the payee is described " as " trustee, while in 
the note the word " as " is omitted.' 



' Hall's Ex'rs v. Lambert's Ex'rs, 3 215; 34 Alb. L. J. 210; Curtis v. Flinn, 

Halst. (N. J.) 651; s. c. 51 Am. Dec. 46 Ark. 70. 

272. ' Varney v. Hawes, 68 Me. 442 ; Fetes 

' Wilson V. Vaugn, 61 Miss. 472. v. O'Loughlin, 62 Iowa, 532. 

3 Booth V. Barnum, 9 Conn. 286. « Webb v. Stone, 24 N. H. 282. 

* Tousley v. Tousley, 5 Ohio St. 78 ; ' Bishop v. Allen, 55 Vt. 423. 

Winchell v. Coney, 6 N. E. Rep. (Conn.) * Cowley v. Shelby, 71 Ala. 122. 

5 



66 MORTGAGES OF REAL PEOPEETT. [§ 99. 

A mortgage which does not distinctly identify the debt or provide 
a time of payment, is held to be due as soon as given.' 

§ 99. Parol evidence to aid description of debt. — "Where the 
condition of a mortgage described two notes for $150 each and one of 
the notes intended to be secured was, in fact, for $150, but the other 
was for $200, but in all other respects they corresponded with those 
described in the mortgage, it was held that it might be shown by 
parol that they were the notes intended to be secured, and that the 
mortgage was not necessarily void.' 

A note payable " one after date " may be identified as one 

payable in one " year " after date, to correspond with the one de- 
scribed in the mortgage.' 

A chattel mortgage executed to an indorser of a note to secure 
payment of that note, has been shown by parol to have been intended 
as security for the mortgagee and another indorser as well, and the 
mortgagee was said to hold as trustee for himself and the other in- 
dorser." 

Where a mortgage is given to secure a bond for a certain time, it 
is competent to prove, by parol, that it was really given to secure an 
open account, the balance of which was continually varying, or for 
future advances,' or to indemnify the mortgagee for becoming surety 
on a note,' and it has repeatedly been held that parol evidence to 
show the purpose and intent for which a security was executed is not 
regarded as contradicting or varying its terras or efEect.' It is even 
permissible to show, by parol, that the mortgagee' is a trustee for 
other persons whose debts the mortgage was intended to secure.' ' 

It is competent for the mortgagor to show in defense to a mort- 

' Eiton V. Truesdail, 40 Mich, i ; ' Esterly v. Purdy, 50 How. 350. 

Sheehy v. Mandeville, 7 Cranch, 208 ; ^ Kimball v. Myers, 21 Mich. 276 ; s. 

Hummel v. Brown, 24 Penn. St. 313 ; c. 4 Am. R. 487. 

Selleck v. French, i Conn. 32 ; Roberts ' Truscott v. King, 6 N. Y. (2 Seld.) 
V. Cocke, 28 Grattan, 207; Heath v. 147, 161 ; Chester v. The Bank of Kings- 
Page, 63 Penn. St. 108 ; Sirett v. Hooper, ton, 16 N. Y. 336, 343 ; Agawam Bank 
62 Me. S4 ; Dodge v. Perkins, 9 Pick. v. Strever, 18 N. Y. 502 ; Hutchins v. 
369 ; Brewster v. Wakefield, 22 How. Hebbard, 34 N. Y. 24 ; Bainbridge v. 
(U. S.) 118, 127. Richmond, 17 Hun, 391, affi'd 78 N. Y. 

2 Cushman v. Luther, 53 N. H. 562. 6i8. 

"Stowev. Merrill, 77 Me. 550; Nichols 'Artcher v. McDufBe, 5 Barb. 147; 
V. Frothingham, 45 Me. 220, and cases Hall v. Crouse, 13 Hun, 557, 561 ; Hub- 
cited, bell V. Blakeslee, 71 N. Y. 63, 69 ; Bain- 

* Bainbridge v. Richmond, 17 Hun, bridge v. Richmond, 17 Hun, 391, affi'd 

391 ; s. c. affi'd 78 N. Y. 618. 78 N. Y. 618. 



§§100-101. J WHO MAT MOETGAGE AND HOW. 67 

gage given, on its face, to secure tlie payment of a certain sum of 
money, that it was really given to indemnify sureties on a recogni- 
zance of bail, and that the sureties had been discharged without being 
damnified ; in such a case a honafide assignee takes only for the pur- 
poses of the indemnity.' 

Parol evidence is not admissible to contradict the written condition 
ot a mortgage, as, for instance, to show that it was intended that the 
lien should cease on payment of a part of the debt." 

§ 100. A mortgage may secure future or contingent obliga- 
tions and it is not necessarily a security for a debt. Thus, it 
may secure an accommodation indorser for liability incurred by the 
indorsement.' Or it may be conditional on the removal of certaia 
specified defects of title, and will then secure those only, and will not 
be enforceable by showing other defects not set forth in the condition.* 
Or it may be given to indemnify the mortgagee from an obligation 
to support a third person.' So, where a mortgage made to secure 
certain payments as well as the performance of a certain specified 
agreement, further provided that it should also become security for 
the performance of a certain other agreement if the mortgagor elected 
to perform the second agreement, it was held that, after election and 
notice by the mortgagor, such mortgage became security for the per- 
formance of the second agreement as efEectually as if the same had 
been set forth in the mortgage." 

Mortgages to one person in trust for the benefit of others have re- 
peatedly been used and upheld by the courts,' and a mortgage to sev- 
eral persons jointly may be made to cover separate debts." 

Where an indorsement is given on the faith of a mortgage, the 
liability thus assumed is a sufficient consideration, and the mortgagee 
will be protected under the recording acts against subsequent pur- 
chasers." 

§ 101. The construction of the condition of a mortgage de- 
pends upon the same rules which control other classes of writ- 
ings. Where the condition of a mortgage, dated June 28, 1871, was 



> Colman v. Post, lo Mich. 422. ing Co., 65 N. Y. 43, 53 ; De Ruyter v. 

' Taylor v. Thomas, 61 Geo. 472. St. Peter's Church, 3 N. Y. (3 Comst.) 

' Gibson v. Wilson, 38 Ark. 207. 238 ; King v. Merchant's Exch. Co., 5 

♦Goodenow v. Curtis, 33 Mich. 505. N. Y. (iSeld.) 547 ; Bucklinv. Bucklin, i 

'Whitton V. Whitton, 38 N. H. 127. Abb. App. Dec. 242. 
• Furbish v. Sears, 2 Clifford, 454. ° Adams v. Niemann, 46 Mich. 135. 

' Carpenter v. Black Hawk Gold Min- ' Uhler v. Sample, 20 N. J. Eq. 288. 



68 MORTGAGES OF EEAL PEOPEETt. [§ 101. 

that the principal should be paid on April 1, 18T3, " with interest 
annually on the first day of April in each year," and an action was 
commenced to foreclose the mortgage upon the ground of default in 
the payment of interest alleged to have become due April 1, 18T2, it 
was held that by the stipulation as to interest, reference was had to, 
and it was intended to provide for a payment of interest prior to, the 
time when the principal became due, and that the plaintiff's claito 
was well founded.' 

Where a bond dated in October, 1827, was conditioned for the 
payment of a sum of money in three instalments, to wit, on the 1st 
May, 1830, 1st May, 1832, and 1st May, 1834, and then followed 
these words, " or of the interest thereof or any part thereof, to be 
paid yearly and every year after the same commences, then, etc.," it 
was held that the interest must be deemed to have commenced on the 
first day of May, 1828 ; that is, that interest from the date of the 
bond for one year should be paid on May 1, 1828, and annual pay- 
ments of interest should thereafter be made on that day, thus making 
the annual interest payable partly in advance or before the expiration 
of the year for which it was payable.^ 

Where the condition of a bond dated Dec. 14, 1833, was that the 
obligor should pay to the obligee the " sura of $3,200, to be paid in 
manner following, viz. : $1,000 on the first of April next, the re- 
mainder in four annual payments thereafter of $550 each, interest 
annually," it was held that the obligee was not entitled to any 
interest during the interval between the date of the bond and April 
1, 1834, when the first payment was to be made. This construction 
was aided by the fact that the words " with interest on the whole " 
had been stricken out of the bond before execution." 

Where a bond and mortgage dated March 18, 1831, were con- 
ditioned to pay " the just and full sura of $1,256.50, with interest 
after the first day of April next, in fourteen equal annual payraents 
on the first day of April of each and every year after the first day of 
next April," it was held that the interest on each instalment became 
due when the instalment was payable and not before. Interest is not 
payable before the principal on which it accrues, unless there be a 
special agreement to that effect.* 

1 Cook V. Clark, 68 N. Y. 178, affi'g 3 ' Fellows v. Harrington, 3 Barb. Ch. 

Hun, 247 ; 5 T. & C. 493. 652. 

■^ Fake v. Eddy, 15 Wend. 76 ; Robbins * French v. Kennedy, 7 Barb. 452. 
«.. Cheek, 32 Ind. 330. 



§ 102.] WHO MAT MOETGAGE AISTD HOW. 69 

§ 102. Personal covenant to pay amount secured. — It is pro- 
vided by statute that " no mortgage shall be construed as implying a 
covenant for the payment of the sum intended to be secured ; and 
where there shall be no express covenant for such payment contained 
in the mortgage, and no bond or other separate instrument to secure 
such payment shall have been given, the remedies of the mortgagee 
shall be confined to the lands mentioned in the mortgage." ' And no 
covenant can now be implied in any conveyance of real estate, whether 
such conveyance contains special covenants or not.^ Where a mort- 
gage, therefore, is taken for the security of a pre-existing indebted- 
ness, without any intention of discharging the original debtor from 
personal responsibility upon his former security, his liability upon 
that security will remain, notwithstanding the debt is further secured 
by such mortgage.^ But if the original indebtedness is intended to 
be discharged and a mere mortgage is taken to secure the amount, 
without any express covenant to pay the same, and no bond or sep- 
arate instrument is given to secm-e such payment, the mortgagee has 
no remedy upon any implied agreement of the mortgagor to pay the 
amount secured by the mortgage, but must resort to the land alone, 
or the proceeds thereof, for payment. The result will be the same 
where an absolute deed is taken as a mere security for the repayment 
of the consideration of such deed instead of an ordinary mortgage ; 
and where there is no covenant or other instrument rendering any 
one personally liable for the debt intended to be secured." 

Where a mortgage without an accompanying bond is given upon an 
advance of money, in the absence of evidence to the contrary, the pre- 
sumption is that the advance was made upon the terms and conditions 
contained in the mortgage ; and if the mortgage contains no cove- 
nant or promise on the part of the mortgagor to pay the money ad- 
vanced, the mortgagee must look to the mortgaged premises alone for 
reimbursement. This is so even though the mortgage contains an 
incorrect recital to the effect that a bond of the mortgagor had been 
given." 

Where an agreement to sell land for a certain price is consum- 
mated by a payment of part of the amoimt in cash and the delivery 

' I R. S 738, § 139; Severance v. 'Gaylord v. Knapp, 15 Hun, 87 ; Hone 

Griffith, 2 Lans. 38 ; Weed v. Covill, 14 v. Fisher, 2 Barb. Ch. 559. 

Barb. 242 ; Salisbury v. Philips, 10 * Hone v. Fisher, 2 Barb. Ch. 559, 

Johns. 57 ; Turk v. Ridge, 41 N. Y. 201. 569. 

' I R. S. 738, § 140. ' Spencer v. Spencer, 95 N. Y. 353. 



70 MORTGAGES OF REAL PROPERTY. [§§103-104. 

of a purchase-money mortgage for the balance, the mortgagor is not 
personally liable for the amount secured in the absence of a bond or 
express covenant.' 

§ 103. The covenant to pay must be specific and distinct.' 

Where a mortgage executed by a married woman contained the fol- 
lowing words : " This grant is intended as security for the payment 
of the sum of $1,200, money loaned and advanced to said party of the 
first part for the benefit and on the credit of her ■ separate estate and 
property, and said party of the first part hereby charges her separate 
estate with the payment of said sum," it was held on demurrer that 
this was not a covenant to bind the mortgagor personally.' If a debt 
existed, the language might have been used in evidence as an ad- 
mission,* but such debt would have to be pleaded.' 

If there be a personal covenant to pay the amount secured by the 
mortgage it may stand quite independent of any collateral obligation. 
Where a mortgage was given by one of the joint makers of a note 
which contained a covenant to pay the " sum of money " mentioned 
in the note, and the other joint maker was thereafter on payment of 
a small sura entirely released, it was held that the covenant contained 
in the mortgage was not discharged." 

MOETGA&ES eF PAETNEESHIP EEAL ESTATE. 

§ 104. Partnership real estate chargeable with partnership 
debts.' — ^Where the title to land is taken in two or more persons the 
legal effect of the conveyance is to constitute them tenants in com- 
mon of the premises therein described, and each can deal with his in- 
terest as such tenant in common by deed or mortgage so as to trans- 
fer all the title he has and make it subject to a valid lien. But 
where tenants in common prima facie are also copartners in business, 
and partnership funds have been expended in the purchase of the 
real property for the use of the copartnership, -and the same has been 



■Vroomanv. Dunlap, 30 Barb. 203. son, 3 N.Y. (3 Comst.) 264; Couger v. 

"^ Shafer v. Bear River, etc , Mining Lancaster, 6 Yerg. (Tenn.) 477 ; Roney 

Co., 4 Cal. 294. V. Moss, 74 Ala. 390. 

3 Mack V. Austin, 95 N. Y. 513, affi'g ' Mack v. Arthur, 95 N.Y., 513; Weed 

29 Hun, 534. V. Covin, 14 Barb. 242. 

* Suffield V. Baskervil, 2 Mod. 36 ; " Walls v. Baird, 91 Ind. 429. 

Chase v. Ewing, 51 Barb. 597; Coleman ' See elaborate article on " Equity of 

V. Van Rensselaer, 44 How. 368 ; Elder Partnership Creditors," 34 Alb. L. J. 

V. Rouse, 15 Wend. 218; Culver v. Sis- 344, 364. 



§ 105.] WHO MAT MORTaAGE AKD HOW. 71 

used for partnership purposes by agreement to that end, it is to be 
treated in equity as partnership assets.' It is made liable for debts 
due to the creditors of the copartnership.'' 

And where moneys of the firm have been expended upon such 
real estate in the improvement of it, the same rule follows as to its 
enhanced value. Other rules as to the disposition of partnership as- 
sets also apply in such case. The creditors of the partnership are 
entitled to priority of payment thereout, and the creditors of an indi- 
vidual member of the copartnership are to be preferred to those of 
another member, and one member to another, or to his creditors for 
any amount paid in by the one in excess of the share he was bound to 
contribute, or in excess of his proportion of the debts of the concern." 

§ 105. Mortgage by one partner of his interest in partner- 
ship real estate. — Where, in such a case, one of the apparent tenants 
in common mortgages his interest in the real estate for a present con- 
sideration to a hona fide mortgagee who has no notice that the land 
is partnership assets, such mortgage will be a valid lien and will take 
precedence of the claims of firm creditors. But if the mortgage is 
given for an antecedent debt, and the mortgagee parts with no value 
upon the faith of the security, or if he takes it with knowledge of 
the factfe, in such a case the mortgage will be subject to all equities 
superior to his own of any person or persons interested in the land." 

It is now well settled that a purchaser from one partner of his in- 
terest in the partnership, acquires no title to any share of the part- 
nership effects, but only his share of the surplus after an accounting, 
and the adjustment of the partnership affairs.^ But where the legal 
title to partnership lands is vested in one partner, his iona fide 
grantee or mortgagee for a present valuable consideration, takes his 
title free from the equities of the other partners or of copartnership 
creditors. But if he have notice that the land is partnership assets,. 
he takes subject to their equities, since a partner cannot sell or mort- 
gage his interest in partnership property so as to deprive his copart- 
ners or the copartnership creditors of their lien thereon for partner- 
ship habihties." So a mortgage on real estate of a firm, executed by 

1 Leary v. Boggs, i N. Y. S. Reptr. ' Hiscock v. Phelps, 49 N. Y. 97. 

(G. T.) 571 ; Collumb v. Reid, 24 N. Y. ■* Hiscock v. Phelps, 49 N. Y. 97 ; 

505 : Hiscock V. Phelps, 49 N. Y. 97 ; Mingins v. Condit, 23 N. J. Eq. 313. 

Fairchild v. Fairchild, 64 N. Y. 471. ' Menagh v. Whitwell, 52 N. Y. 147 ; 

' Hiscock V. Phelps, 49 N. Y. 97, 103; Beecher v. Stevens, 43 Conn. 587. 

Buchan v. Sumner, 2 Barb. Ch. 165. ,^ Buchan v. Sumner, 2 Barb. Ch. 167 ; 



72 MOETGAGES OF EEAL PEOPERTY. [§ 106. 

the surviving partner to secure the payment of an individual liability, 
creates a lien only to the extent of his interest.' Where one member 
of a firm held the legal title to real estate which, in equity, was the 
property of the firm, and mortgaged it to secure his own precedent 
debt, it was held that the lien of the mortgage was not superior to 
the prior liabilities of the firm.^ And there would be no distinction 
between partnership debts incurred before or after the mortgage.' 

Where the legal title to land held for partnership uses was in one 
member of the firm and another member executed a mortgage of all 
of his interest in said real estate, it was held that this created a lien 
only upon such balance as might be found due to the mortgagor upon 
the winding up of the concern ; that the recording of it did not give 
any notice to a purchaser for value of the property from the legal 
owner, such transfer being made in the course of liquidation of the co- 
partnership affairs, and that even if such purcha,ser had received ac- 
tual notice of it, his title would not have been affected or impaired 
thereby." The fact that a partner's interest in partnership real estate 
is mortgaged for the purchase money of his share in the partnership 
is immaterial ; he can only mortgage what he has, which is a share 
subject to partnership debts.° A mortgage by one partner of his in- 
terest- in copartnership property is valid so far as to create a lien on 
what may be found to be his share after satisfying firm creditors and 
the claims of his copartners." And such a mortgage of partnership 
real estate is relieved of all partnership equities as soon as the busi- 
ness of the partnership is closed and the firm debts are paid.' 

§ 106. Notice that real estate is partnership assets. — Knowl- 
edge that the real estate is used by the copartnership in carrying, on 
its business will put a person dealing with one partner for a mortgage 

Tarbell v. West, 86 N. Y. 280 ; Hoxie Kistner v. Sindlinger, 33 Ind. 114 ; Jones 

V. Carr, i Sumn. 183 ; Hiscock v. Phelps, v. Parsons, 25 Cal. 102 ; Fargo v. Ames, 

49 N. Y. 97 ; Cavander v. Bulteel, L. R. 45 Iowa, 491 ; Warren v. Taylor, 60 

9 Ch. App. Cas. 79 ; Norwalk Bank v. Ala. 218. 

Sawyer, 38 Ohio St. 339 ; 27 Alb. L. J. ' Lang's heirs v. Waring, 17 Ala. 145. 

185 ; Arnold v. Stevenson, 2 Nev. 234 ; ^ Lewis v. Anderson, 20 Ohio St. 281. 

Whitmore v. Shiverick, 3 Nev. 288 ; ' Lovejoy v. Bowers, 11 N. H. 404. 

Burbank v. Wiley, 79 N. Car. 501 ; * Tarbell v. West, 86 N. Y. 280 ; s. c, 

Henry v. Anderson, 77 Ind. 361 ; Love- sud nam. Tarbell v. Bradley, 7 Abb. N. 

joy V. Bowers, 11 N. H. 404; Sumner Cas. 273. 

V. Anderson, 8 Ohio, 328 ; 32 Am. Dec. ' Chase v. Steel, 9 Cal. 64. 

722 ; Martin v. Trumbull, Wright, 386 ; * Thompson v. Spittle, 102 Mass. 207. 

Rammelsberg v. Mitchell, 29 Ohio St. ' Hewitt v. Rankin, 41 Iowa, 35 ; 

52 ; Ludlow V. Cooper, 4 Ohio St. i ; Shearer v. Shearer, 98 Mass. 107. 



§§107-108.] WHO MAY MORTGAGE AND HOW. 73 

lien upon inquiry to ascertain the nature of the equitable rights of 
the other partners even if it will not operate as notice of such equita- 
ble rights.' In England it would amount to notice.'' 

§ 107. As between the partners, each has a lien on the partner- 
ship assets for advances made to the concern or to the otlier partners 
in the course of carrying on the firm affairs, and the rights of the 
partner making the advances as against the common property are not 
dependent upon or increased by a mortgage executed to him thereon ; 
his lien is, in any event, superior to charges created by his copartners 
for their individual debts, and is inferior to the claims of partnership 
creditors.^ 

The application of partnership property to the payment of partner- 
ship debts is the equity of the partners and not of the creditors, and 
therefore the partnership, while it is solvent, may sell or mortgage its 
property to one of the partners ; and if the sale or mortgage is made 
or given in good faith and for valuable considerations, it will be valid 
against the claims of the partnership creditors. And although if such 
mortgage be retained by the partner until the bankruptcy of the 
firm, he will not be allowed to enforce it against the company assets 
to the exclusion of the partnership creditors, because he is himself 
liable to these creditors, yet the assignee of such mortgage for value 
during the solvency of the firm, will hold it unafiiected by the claims 
of the partnership creditors.* 

A mortgage given by a member of a firm to the firm is valid. It 
is in no sense a mortgage to himself .° 

§ 108. Dower in partnership real estate. — The rule of equity 
which treats partnership real estate as partnership assets, exempts it 
from the usual incidents of dower, and deprives the heir of a de- 
ceased owner of the fee from his inheritance until the partnership 
debts are fully paid. The land is said to be converted into personal 
property for the purpose of adjusting the partnership affairs. So, 
where certain real estate was purchased by partners with partnership 
means for partnership purposes, and was mortgaged to secure the 



' Mechanics' Bank v. Godwin, 5 N. ' Irwin v. Bidwell, 72 Penn. St. 244 ; 

J. Eq. (i Halst. 334). Warren v. Taylor, 60 Ala. 218. 

^Cavanderv. Bulteel, gL. R. Ch. App. * Waterman v. Hunt, 2 R. 1. 298; 

Cas. 79. And see McKinzie v. Perrill, 15 Smith v. Lusher, 5 Cow. 688; Burney v. 

Ohio St. 162 ; 2 Lead. Cas. in Eq. (4th Lyman, i Story, 423. 

Am. ed.) 180 ; Norwalk Bankv. Sawyer, ^ Galway v. FuUerton, 17 N. J. Eq. 

38 Ohio St. 339 ; 27 Alb. L. J. 185. 390. 



74 MORTGAGES OF EEAL PEOPEBTY. [§ 109. 

payment of a partnership debt, and was afterward sold on a fore- 
closure of the mortgage and purchased by the partnership creditors, 
leaving a balance of the partnership debt unpaid, the firm and its 
members being insolvent, it was held in a partition suit by the widow 
of one of the partners, that she had .no interest in the property, 
though she did not sign the mortgage and was not a party to the fore- 
closure." 

But the rule is not extended beyond the necessity of protecting 
firm creditors for their debts, and the individual partners for their 
shares in the firm assets. So far as the individual owners are con- 
cerned, after the property is reheved from the demands of firm cred- 
itors and of their copartners, the land is to be treated as real estate in 
which their wives have dower, and it descends to their heirs and does 
not pass to their personal representatives.'' 

§ 109. Equities of individual partners ariti their several cred- 
itors. — The equitable rule which requires partnership assets to be first 
applied to liquidate partnership obligations, also requires that the in- 
dividual property of the partners should not be taken for firm debts 
until the joint estate is first exhausted. And where a member of a 
partnership mortgaged his separate property to secure a partnership 
debt and became insolvent, his individual creditors were held to 
be entitled to have the partnership property first applied to discharge 
the debt so secured.^ 

So, also, where a partner mortgages his private property to secure a 
partnership debt which is also secured by a mortgage on partnership 
property, he stands as surety for the partnership, and is entitled to be 
subrogated to the rights of the mortgagee ; and the creditors of such 
surety are entitled to the same right of subrogation as the surety him- 
self, the partnership property being the primary fund, the private 
property collateral.* 

But where one of two partners executes a mortgage upon his sep- 
arate property to secure a debt of the firm, an action to foreclose the 
mortgage may, after the death of the mortgagor, be maintained with- 
out any showing by the plaintiff that the partnership is insolvent or that 
he has pursued his remedy upon the debt against the surviving partner.' 

' Huston V. Neil, 41 Ind. 504. ' Averill v. Loucks, 6 Barb. 470. 

^ Hewitt V. Rankin, 41 Iowa, 35 ; * Bank of Royalton v. Gushing, 53 Vt. 

Shearer v. Shearer, 98 Mass. 107 ; Fos- 321. 

ter's Appeal, 74 Pa. St. 391 ; Wilcox v. ' Saving and Loan Society v. Gibb, 21 

Wilcox, 13 Allen (Mass.) 252. Cal. 595. 



§§110-111.] WHO MAT MOETGAGE AND HOW. 75 

A mortgage made by an individual to secure " any and all indebt- 
edness" from the mortgagor to the mortgagee, does not secure a 
debt owing by the firm of which the mortgagor is a member. Pari> 
nership debts are joint and not joint and several.' 

§ 110. What real estate is partnership assets. — In order that 
land the title of which is owned in common by members of a partner- 
ship shall be treated as partnership assets, there should be proof either 
of an agreement to that effect between them, or it should be shown 
that the land was purchased with partnership funds. The mere cir- 
cumstance of a joint ownership of title is not, in itself, a partnership, 
and the legal rights of tenants in common in land are not inconsistent 
with a partnership in which they have also invested personal proper- 
ty. So, where a partnership existed between tenants in common of 
land, and the property was sold and conveyed by their joint deed, 
but one partner received the entire consideration, he was held liable 
in an action at law brought by his partner for the moiety of such 
consideration, and it was determined that the rights of the plaintiff in 
such action did not in any way depend upon a settlement of the part- 
nership accounts.^ 

§ 111. Power of one partner to mortgage firm real estate. — 
It is within the power of any member of a partnership, notwithstand- 
ing the protest of his copartners, to mortgage any part of the firm as- 
sets to secure payment of a partnership obligation or to obtain a loan 
of money for partnership uses.' But one partner may not mortgage 
the individual property of his copartner without his consent or ac- 
quiescence under such circumstances as to create an estoppeL'' 

A mortgage by one pai-tner of partnership real estate standing in 
his own name as owner,, to raise money to pay firm debts, is within 
such partner's implied authority and binding on the firm.' So, in a 
case where partnership real estate was held by one partner, and an- 
other partner assumed to mortgage it in the name of the firm for a 
firm debt, this mortgage was held to create a valid lien which was 
superior to a subsequent mortgage executed by the record owner of 
the legal title." 

' First National Banlc of Batavia v. * Gates v. Bennett, 33 Ark. 475. 
Tarbox, 38 Hun, 57. e Chittenden v. German Amer. Bank, 

2 Coles V. Coles, 15 Johns. 158. 27 Minn. 143. 

3 Nelson v. Drake, 14 Hun, 465; Mab- , ^^g^^ ^_ Hunter, 14 Wis. 683. 
bett V. White, 12 N. Y. 454 ; Graser v. 

Stellwagen, 25 N. Y. 315. 



76 MORTaAGES OF EEAL PEOPERTT. [§ 112. 

§ 112. Mortgages by limited partnerships. — The statute of this 
State relating to limited partnerships provides that every sale, assign- 
ment, or transfer of any of the property or effects of such partnership 
made by such partnership when insolvent or in contemplation of in- 
solvency or after or in contemplation of the insolvency of any part- 
ner, vpith the intent of giving a preference to any creditor of such 
partnership or insolvent partner over other creditors of such partner- 
ship ; and every judgment confessed, hen created, or security given by 
such partnership under the like circumstances and with the like in- 
tent shall be void as against the creditors of such partnership.' 

Every such sale, assignment, or transfer of any of the property or 
effects of a general or special partner made by such special or general 
partner when insolvent or in contemplation of insolvency or after or 
in contemplation of the insolvency of the partnership, with the intent 
of giving to any creditor of his own or of the partnership, a pref- 
erence over creditors of the partnership, and every judgment con- 
fessed, lien created, or security given by any such partner, under the 
like circumstances and with the like intent, shall be void as against 
the creditors of the partnership.^ 

These provisions relate, of course, only to limited partnerships and 
to the general or special partners in limited partnerships.' They 
make preferences in contemplation of insolvency attempted to be 
created for the benefit either of a creditor of the firm or of an indi- 
vidual partner void, regardless of any knowledge of the creditor or 
the intent of the partner; the invalidity of the preference is not 
made to depend upon any knowledge of collusion or fraud on the 
part of the creditor. In this respect the provisions under consider- 
ation are unlike other statutes declaring transactions between debtor 
and creditor or third party void.' 

Under this statute a mortgage executed by a special partner upon 
his individual real estate to secure money loaned, part of which was 
used to pay an individual debt to the mortgagee and the balance of 
which was used to pay other individual debts of the mortgagor, was 
declared to be void upon a demurrer to the complaint. At the time 
of the giving of the mortgage the mortgagor had, by his acts, become 
liable as a general partner, and he was insolvent, and the mortgage 

' I R. S. 766, § 20. of this statute may be found in Fanshawe 

' Id. 767, § 21. V. Lane, 16 Abb. Pr. 71. 

° A very clear exposition and history •* Per Potter, J., in George v. Grant, 

20 Hun, 372. 



§ 113.] WHO MAT MORTGAGE AND HOW. 77 

was given witli intent to give the mortgagee and other individual 
creditors a preference over the firm creditors, and it was received 
by the mortgagee with knowledge of such facts and intent.' An 
answer was afterward interposed in this case, and a trial having been 
had, a very different result was reached. The mortgage, though 
made by a special partner, on his individual property, for the purpose 
of raising money to pay his individual debts, was shown to have been 
executed for a present consideration to nearly its entire extent, and it 
was' to the extent of such present consideration declared valid, the 
portion reserved by the mortgagor to satisfy his individual claim 
being rejected. Mortgages given for money advanced at the time 
were held to be valid, and the Court of Appeals declined to pass upon 
the general question as to whether a mortgage of individual property 
executed by a special partner would or would not be void." 

MORTGAGES FEOM HUSBAND TO WIFE. 

§ 113. Valid in equity if made direct from husband to wife. — 

While a deed of conveyance from a husband directly to his wife has 
been held to be void, the doctrine has been regarded as very tech- 
nical, and has easily and frequently been evaded, and it has uniform- 
ly been held, even independent of our peculiar statutes relative to 
the rights of married women, that such a conveyance may be sus- 
tained in equity where the wife has been regarded as a person having a 
separate existence, separate rights, and a capability of holding separate 
property ; and unless wholly without consideration, a conveyance de- 
fective in consequence of the common law rule is upheld.^ 

If no rights of creditors intervene, a mortgage may be made from 
a husband to his wife as a mere gift/ and a mortgage for a just consid- 
eration executed by a husband to his wife may be enforced in equity." 

It was a rule of the common law that when a man married a woman 
to whom he was indebted, the debt was thereby released, because hus- 
band and wife made but one person in law, which unity of persons 
disabled the wife from suing the husband. In this State the Code 
and the acts of 1848 and 1849 have completely swept away the com- 

' George V. Grant, 20 Hun, 372, ''Van Amburgh v. Kramer, 16 Hun, 

^ Id., 97 N. Y. 262, affi'g 28 Hun, 69. 205; Isenhartv. Brown, 2 Edw. Ch. 341 ; 

2 Meeker v. Wright, 76 N. Y. 262, Bucklin v. Bucklin, i Abb. App. Cas. 242; 

rev'g s. c. II Hun, 533 ; s. c. 7 Abb. N. Hunt v. Johnson, 44 N. Y. 27. 

C. 299 ; Shepard V. Shepard, 7 Johns. Ch. ^ Mix v. Andes Ins. Co., 9 Hun, 397. 

57 ; Hunt V. Johnson, 44 N. Y. 27. 



78 MOETGAGES OF REAL PROPERTY. [§§ 114r-115. 

mon law rale wMeh gave the husband rights in and control over the 
property of the wife, and a mortgage executed by a man to a woman 
whom he afterward marries, is no longer affected by the marriage.' 

A wife having a vahd mortgage on her husband's real estate, does 
not lose her lien by joining in a deed of the property for the purpose 
of passing her dower.'' 

MORTGAGES BY COEPOEATIONS. 

§ 114. Power to mortgage. — Corporations, unless restrained by 
their charters, have power to mortgage their property, whether real 
or personal, to secure debts either for borrowed money or for other 
considerations,' but no corporation can, without some statute allowing 
it to do so, either sell or mortgage its franchises.* 

A mortgage of the real property and franchises of a mining cor- 
poration has been held valid as to the real property included in it, 
but inoperative as to the franchises.' 

The franchises, privileges, rights, and liberties, which are not per- 
mitted to be mortgaged by a corporation," are the corporate franchises 
and rights which become vested in the company by virtue of its or- 
ganization as a corporation under a general law. These do not include 
patent rights, licenses, easements, or privileges acquired by the com- 
pany after its incorporation, either from individuals or corporations, 
which are in the nature of property, of which the company has the 
power to dispose.' » 

§ 115. Executing mortgage by corporation. — ^Where the avails 
of a mortgage made by the oflEicers of a corporation are appUed to 
corporate uses, slight evidence of authority to execute it will be suffi- 

' Power V. Lester, 23 N. Y. 529, affi'g ing Co., 65 N. Y. 43, 50 ; Susquehanna 

s. c. 17 How. 413 ; Meeker v. Wright, Canal Co. v. Bonham, 9 Watts & S. 27 ; 

76 N. Y. 262. Arthur v. Com'l and R.R. Bank, 9 

^ "VanAmburghv. Kramer,i6Hun,205; Smedes & M. (Miss.) 394 ; NewOrleans, 

Gillig V. Maas, 28 N. Y. 191 ; Power v. etc., R.R. Co. v. Harris, 27 Miss. 517 ; 

Lester, 23 N. Y. 527. Stewart v. Jones, 40 Mo. 140. 

2 Carpenter v. Black Hawk Gold Min- ' Carpenter v. Black Hawk Gold Min- 
ing Co., 65 N. Y. 43, 49 ; DeRuyter v. ing Co., 65 N. Y. 43, 50. 
St. Peter's Church, 3 N. Y. (3 Comst.) «Lawsof 1878, ch. 163. 
238 ; Barry v. Merchant's Exchange Co., ' Lord v. The Yonkers Fuel Gas Co., 
1 Sand. Ch. 280 ; King v. Merchant's loi N. Y. 614 ; Bridgeport v. N. Y. & N. 
Exchange Co., 5 N. Y. (i Seld.) 547 ; H. R.R. Co., 36 Conn. 255 ; Chicago R. 
Richards v. Merrimack Railroad, 44 N. R. Co. v. People, 73 111. 541 ; Morgan v. 
H. 127. Louisiana, 3 Otto, 223. 

* Carpenter v. Black Hawk Gold Min- 



§ 116.] WHO MAT MORTGAGE AND HOW. 79 

cient. The affixing of the corporate seal will in all cases raise a pre- 
sumption of authority.' 

If a corporation receives benefits under a contract made by one of 
its officers, a part of which contract included the executing of a mort- 
gage, the company will not be allowed to repudiate the mortgage 
without returning the consideration for it. In other words, the com- 
pany holding the moneys and benefits derived under the mortgage 
would be estopped from questioning the authority of its officers to 
make the contract upon which its title to such moneys and benefits 
depends.'' 

Where the trustees of a religious society mortgaged its property 
without signing the mortgage in proper form, parol evidence was 
held admissible to charge the society as principal in the mortgage.' 

§ 116. Mortgages by corporations organized under the man- 
ufacturing act. — ^A statute passed in 1811 permitted the formation 
of corporations for certain manufacturing purposes.* In 1822 it was 
enacted, in order to remove doubts as to the power of the trustees of 
manufacturing companies formed under this statute, to secure debts 
contracted by them, by mortgaging their real estate, " that it shall be 
lawful for the trustees of any such company to secure the payment 
of any debt contracted or to be contracted by them in the business 
for which they were incorporated, by mortgaging all or any part of 
the real estate of such company ; and every mortgage of such trustees 
shall be as valid to all intents and purposes as if executed by an in- 
dividual owning the real estate : provided, that the written assent of 
the stockholders owning more than two-thirds of the stock of the 
company shall first be given." ' 

In 1848 the various laws then existing relating to manufactur- 
ing, mining, or chemical corporations were gathered together and re- 
enacted in a statute which, as much amended, is now in force. The 
second section of that statute provides that persons filing the required 
certificate shall be a body politic and corporate, and they shall by 
their corporate name be capable in law of purchasing, holding, and 
conveying any real and personal estate whatever, which may be nec- 
essary to enable the said company to carry on their operations named 

' Whitney v. The Union Trust Co. of Steam Navigation Co. v. Weed, 17 Barb. 
N. Y., 65 N. Y. 576. 378. 

"^ Nelson v. Drake, 14 Han, 465 ; Whit- ' Scott v. Trustees, etc., 50 Mich. 528. 
ney Arms Co. v. Barlow, 63 N. Y. 62 ; * Laws of 1811, ch. 67. 

' Laws of 1822, ch. 213. 



80 MORTGAGES OF EEAL PEOPEETT. [§ 117. 

in such certificate, but shall not mortgage the same or give any hen 
thereon.^ 

Any corporation formed under the said act or of the acts amending 
or extending the same, may secure the payment of any debt hereto- 
fore contracted or which may be contracted by it, in the business for 
which it was incorporated, by mortgaging all or any part of the real 
or personal estate of such corporation ; and every mortgage so made 
shall be as valid to all intents and purposes as if executed by an indi- 
vidual owning such real or personal estate, provided that the written 
assent of the stockholders owning at least two-thirds of the capital 
stock of such corporation shall first be filed in the office of the clerk 
of the county where the mortgaged property is situated." 

In all cases where a corporation shall have heretofore made or shall 
hereafter make a mortgage of any of its real estate situated beyond 
the limits of this State, and the recording officer of the county in 
which such real estate is situated shall have refused or shall refuse to 
file or record the assent, as now required by law, it is hereby declared 
to be and to have been a sufficient filing of the assent of the stock- 
holders if such assent shall have been or shall hereafter be filed in the 
office of the clerk of the county where the company has its principal 
nlace of business within this State." 

It has also been enacted that " any company formed under the act 
entitled ' An act to authorize the formation of corporations for manu- 
facturing, mining, mechanical or chemical purposes,' passed February 
17, 1848, or of the acts amending or extending said act, may secure the 
payment of any debt heretofore contracted or which may be con- 
tracted by it, in the business for which it was incorporated, by mort- 
gaging all or any part of the goods and chattels of such corporation, 
and also the franchises, privileges, rights, and liberties thereof, pro- 
vided that the written assent of a majority of the stockholders owning 
at least two-thirds of the capital stock of such corporation shall first 
be filed in the office of the clerk of the county where the corporation 
has its principal place of business, and also in the office of the clerk 
of the county where such goods and chattels are situated." * 

§117. Form of assent of stockholders. — The statutes prescribe 
no form in which the required assent of the stockholders shall be 



' Laws of 1879, ch. 200. ' Laws of 1869, ch. 706. 

" Laws of 1864, ch. 517 ; Laws of 1871, * Laws of 1878, ch. 163. 
ch. 481. 



§ 118.] WHO MAT MOETGAGE AND HOW. 81 

given. The object of the legislature is the protection of the stock- 
holders and to guard against the power of the officers of the company 
to incumber its property without the consent of at least two-thirds of 
the stockholders. The written assent is the evidence required by the 
statute, and as no particular form is specified or required, any form 
which they may choose to, adopt and which contains reasonable evi- 
dence of the consent of two-thirds of the stockholders to the making 
of the mortgage in question, is sufficient. If the instrument contains 
enough to specify and identify the mortgage to which the stock- 
holders intended to give their assent, it is sufficient. An instrument 
in the following form, which did not specify the amount of the in- 
tended mortgage, has been held a sufficient compliance with the law : 
" Know all men by these presents, that we, the undersigned stock- 
holders of the Kings County Manufacturing Company, and owning 
more than two-thirds of the capital stock of the said company, do 
hereby severally consent that the Kings County Manufacturing Com- 
pany execute to the Greenpoint Sugar Company a bond conditioned 

for the payment of , and a mortgage to secure the same upon 

the lands and premises by them owned, situate in the city of Brook- 
lyn, county of Kings, in the State of New York or any part thereof. 
Dated October 21, 1869." ' 

The blank space left in the place where an amount was ob- 
viously intended to be inserted, was said not to be fatal to the suffi- 
ciency of the assent, and the legal import of the document was held 
to be to authorize the securing of the full amount of any vahd debt 
which existed and which was permitted by law to be so secured. And 
parol evidence was held to be admissible to show the situation of the 
parties and the amount of the debt in contemplation of the parties at 
the time.' 

The consent of the requisite proportion of the stockholders of a 
manufacturing company to the mortgaging of its " real and personal 
estate" will not sustain a mortgage of its "franchises, privileges, 
rights and liberties." ° 

§ 118. Who must sign assent. — For the purposes of the act the 
amount of stock actually issued and owned must be regarded as the 
amount of the capital stock. The design was to confer this power of 

' Greenpoint Sugar Co. v. Kings Coun- ' Greenpoint Sugar Co. v. Whitin, 6g 
ty Manfg. Co., 7 Hun, 44 ; s. c. affi'd 69 N. Y. 328, affi'g s. c. 7 Hun, 44. 
N. Y., 328. ' Lord v. Yonkers Fuel Gas Co., 99 N. 

Y. 547. 

6 



83 MOETGAGES OV KEAL PEOPEETY. [§ 119. 

assent upon those who represented two-thirds of the actual stock. 
They represent two-thirds of the pecuniary interest and property of 
the corporation. Otherwise it might happen that there would not be 
a sufficient ownership of the stock to enable the company to execute 
a mortgage at all.' 

Where a part of the stock is owned by the corporation, it cannot 
give assent for the shares so owned by it to make up the requisite two- 
thirds, neither can the assenting stockholders be deemed to represent 
a proportionate amount of the stock owned by the corporation. It 
is also exceedingly doubtful as to whether the shares so held by the 
corporation may be deducted from the whole number in ascertaining 
if the assent of the requisite two-thirds has been obtained. But where 
the corporation has transferred part of the stock held by it as security 
for debt, by transfers absolute upon their face, the transferees must be 
counted as stockholders, and may sign the requisite consent.'' 

The act of 18T8 ' requires the assent of " a majority of the stock- 
holders owning at least two-thirds of the capital stock," etc. Whether 
the intention was to require the consent of a majority in number of all 
the stockholders of the company, as well as a two-thirds majority of 
the stock, cannot be said to be finally determined.* 

§ 119. When assent must be made and filed. — It is not requi- 
site for the validity of the mortgage, that the written assent of the 
stockholders be filed before the mortgage is made. The reasonable 
construction of the statute is that the mortgage is valid from the 
filing of the assent. It provides in substance that any mortgage au- 
thorized by the act shall be as valid as if executed by an individual, 
provided that the assent is first filed, etc. The validity of the mort- 
gage is made to depend upon the filing of the assent, and it follows 
that from the time of filing the mortgage is valid. There is no doubt 
that a filing at the time of recording the mortgage, which is the 
final step in perfecting the security, is sufficient." 

The literal reading of the proviso in the act of 1864, makes the 
obtaining and filing of the assent of stockholders, conditions precedent 
to the mortgaging of corporate property. The object of the legis- 
lature was to protect the stockholders, and it does not preclude them 

' Greenpoint Sugar Co. v. Whitin, 69 ' Laws of 1878, ch. 163. 
N. Y. 328. •'Lord V. Yonkers Fuel Gas Co., gg N. 

'Vail V. Hamilton, 85 N. Y. 453, affi'g Y. 547, 558. 
20 Hun, 355 ; see Conkling V. Secor Sew- 'Greenpoint Sugar Co. v. Whitin, 69 

ing Machine Co., 55 How. 269. N. Y. 328, affi'g s. c. 7 Hun, 44. 



§§120-121.] WHO MAT MOETGAGE AND HOW. 83 

from ratifying a mortgage and by a subsequent assent validate an 
originally unauthorized transaction. What the stockholders might 
originally have done, they may hereafter do, where there are no inter- 
vening rights. The purpose of the statute in requiring the assent to 
be filed seems to have been to perpetuate the evidence of the fact, 
and to free titles acquired under mortgages by corporations from 
the uncertainty which would attend them if the extrinsic fact of 
assent were not a matter of public record. The consent of the stock- 
holders is the important and essential thing. The filing is formal and 
subsidiary. The corporation could not be heard to allege as a defense 
to the mortgage that although assented to, the evidence of the assent 
was not recorded ; and a subsequent mortgagee or purchaser stands in 
no better position.' 

§ 120. Act of 1875 as to mortgages prior to that date. — By 
laws of 1875, Chapter 88, it is provided that in all cases where a cor- 
poration had theretofore executed a mortgage upon any of its real es- 
tate, and the written consent of persons owning two-thirds or more 
of the capital stock of such corporation shall have been given to the 
mortgaging of such real estate at or before the time of the giving of 
such mortgage, but from accident or mistake the said consent had not 
been filed in the office of the clerk of the county in which such real 
estate is situated as required by law, it shall be lawful for the clerk 
of said county to receive and file in his office the written consent so 
given accompanied by the affidavit of any officer or stockholder of 
such corporation, showing that such consent was in fact made and 
signed at the time the same purports to have been made and signed, 
and that the signatures thereto are genuine ; and in such case, on filing 
such consent and affidavit, the said mortgage shall have the like validi- 
ty and effect from and as of the time of the filing of such consent 
and affidavit as if the same had been given at that time and had been 
accompanied or preceded by the filing of such consent ; provided that 
nothing therein contained shall affect any action or legal proceeding 
then pending, or impair any intermediate right acquired by lien or 
otherwise, in or to the property of the corporation affected by such 
mortgage. 

§ 121. Purchase-money mortgage by corporation. — Where a 
corporation buys real or personal property, atid secures a part of the 
purchase money by a mortgage lien on the property thus acquired, 

' Rochester Savings Bank v. Averell, 96 N. Y. 467, affi'g 26 Hun, 643. 



84 MOETaAftES OF EEAL PEOPEKTT. [§ 122. 

such mortgage is part of the transaction upon which the title of the 
corporation depends, and does not require the assent of stockholders 
to render it valid.' 

§ 122. Who may take advantage of lack of assent of stock- 
holders. — The objection that a mortgage by a manufacturing com- 
pany is void by reason of the lack of the required assent of stock- 
holders, may be made by a receiver of the corporation, appointed on 
the application of a creditor, who may bring an action to have it set 
aside,' but it is at least doubtful whether such an objection would be 
available to a person claiming in hostility both to the corporation 
and to the mortgagee, as for instance the holder of a junior lien.' A 
person taking a junior mortgage with knowledge of a prior mortgage, 
as to which a consent had been given which was not properly filed, 
is not in a situation to contest the earlier lien." And the purchaser 
of an equity of redemption under a judgment against the corporation 
has been declared not to be entitled to benefit by an omission to ob- 
tain or file the consent for the giving of the mortgage.' This rule 
was applied when the plaintiff became the purchaser at a sale under 
his own judgment, by the terms of which the property was sold 
" subject to whatever sum might be due upon said property by virtue 
of the mortgage." ° 

In Pcmldmg v. The Chrome Steel Co. (94 IST. T. 334, 341), the 
following language is used by Andrews, J. : " That assent has been 
considered by us as exacted for the benefit and protection of stock- 
holders against improvident or corrupt acts of the officers of the cor- 
poration, and not because the legislature regarded the mortgaging of 
corporate property as improper per se, and it is at least doubtful 
whether any but stockholders can complain that the condition was 
not complied with." ' 

A stockholder may impeach a mortgage of a manufacturing corpo- 
ration for lack of the requisite assent of stockholders, or because not 

' Coman v. Lakey, 8o N.Y. 345; Amer- * Rochester Savings Bank v. Averell, 

man v. Wile, 24 N.J. Eq. 13, 17 ; Green- 26 Hun, 643. 

point Sugar Co. v. Whitin, 69 N. Y. 328; * Per Cooley, J., in Beecher v. Mar- 
Stow V. Tifft, 15 Johns. 458; Dusenbury quette & Pacific Rolling Mill Co., 23 
V. Hurlbert, 59 N.Y. 541. Alb. L. J. 316. 

'Vailv. Hamilton, 20 Hun, 355 ; s. c. « Conkling v. Secor Sewing Machine 

affi'd, 85 N. Y. 453 ; Astor v. Westches- Co., 55 How. 269. 

ter Gaslight Co., 33 Hun, 333. ' Citing Greenpoint Sugar Co. v. Whit- 

' Greenpoint Sugar Co. v. Whitin, 6g in, 69 N. Y. 328. 
N. Y. 328. 



§ 123. J WHO MAY MORTGAGE AWD HOW. 85 

given for a debt of the corporation ; bnt in an action to do this, the 
burden of proving all material facts will rest upon the plaintiflE.' 

§ 123. What debts may be secured by manufacturing compa- 
nies. — The statute permits manufacturing corporations, under condi- 
tion of procuring consent of stockholders, to mortgage their property 
"to secure the payment of any debt heretofore contracted or which 
may be contracted by it in the business for which it was incorpora- 
ted." " In Gentral Oold Minvng Co. v. FlaU (3 Daly, 263), a mort- 
gage had been made by such a corporation to trustees therein named, 
to secure coupon bonds. Some of these bonds were transferred at 
par in satisfaction of a debt of the company ; others were sold at a 
discount of from 25 to 50 per cent., and $30,000 of such bonds were 
pledged for a loan of $5,000, and, such loan not being paid, they 
were sold for that amount and interest. The question was raised as 
to the validity of the mortgage, and the General Term of the Com- 
mon Pleas held, reversing the Special Term, that the corporation 
might lawfully execute a mortgage to secure a debt not yet made, 
and might authorize the sale of the bonds secured by the mortgage 
in order to raise money for use by the corporation. In Ca/rpenUr v. 
Black Hawk Oold Minvng Co. (65 N. Y. 43, 49), a mining com- 
pany, organized under the statute under consideration, authorized a 
mortgage to secure bonds, some of which were transferred to credit- 
ors of the company, and it was said by Eael, C, that the mortgage 
was valid only for such part of the bonds as had been used in securing 
debts of the company, though the company and the stoeldiolders 
would probably be estopped as to such of the purchased bonds as 
were in the hands of l)ona fide holders. In the language of the 
learned judge : " A mortgage upon real estate is allowed only to se- 
cure the payment of debts. It caimot be made to raise money merely 
to carry on the operations of the company." 

In a later case, the question of the validity of a mortgage executed 
by the trustees of a manufacturing company in pursuance of due con- 
sent of the required portion of stockholders, where bonds secured 
thereby were sold to raise money to pay debts of the corporation, was 
directly presented. It was then held that " there is nothing in the 
act which requires that in the case of a trust mortgage to secure ne- 
gotiable bonds to be thereafter issued, the debts authorized to be se- 



' Denike v. N. Y. & R. Lime, etc., Co., ' Laws of 1864, ch. 517 ; Laws of 1871, 
80 N. Y. 599. ch. 481 ; Laws of 1878, ch. 163. 



86 MORTGAGES OF EEAL PEOPEETT. [§§124-125. 

cured should be in existence at the time the mortgage and bonds are 
prepared and executed. Every conceivable intent of the statute is 
effectuated, provided the bonds are negotiated only for the purpose 
of paying debts contracted before the negotiation of the bonds. 
Where a bond of this description, having no previous vitality, is de- 
livered to a creditor of the company to pay or secure his debt, the 
delivery of the bond is the act by which his debt becomes secured. 
The security to the creditor then for the first time comes into being, 
and is as effectual as if the mortgage were executed at the same time 
with the delivery of the bond. The effect is the same if the bond is 
sold to provide means to pay a debt existing at the time of the sale, 
and the proceeds are paid to the creditor." ' 

§ 124. Gaslight companies. — The effect of the provision of the 
act of 1872 " amending the act of 1848 ' providing for the formation 
of gashght companies, which authorizes a corporation organized 
under it to purchase property and borrow money necessary for its 
corporate business, and to issue bonds and to mortgage its property and 
franchises to secure any debts so contracted, was to supersede the 
provisions of the amendatory act of 1867,' which required the written 
consent of two-thirds of the stockholders to the execution of a mort- 
gage.^ 

§ 125. Mortgages by clubs and societies. — The Supreme Court 
may, upon the application of any society, association, or corporation, 
now or hereafter incorporated under the act entitled " An act for the 
incorporation of societies or clubs for certain social and recreative 
purposes," passed April 11, 1865, and the acts amendatory thereof, 
or under Chapter 267, of the Laws of 1875, entitled "An act for the 
incorporation of societies or clubs for certain lawful purposes," and 
of the several acts extending and amending said act, in case it shall 
deem it proper, make an order for the mortgaging of any real or 
personal estate belonging to any such corporation, and direct the ap- 
plication of the moneys arising therefrom by the said corporation, and 
upon like application may confirm any bond or mortgage heretofore 
given by any such corporation, and thereupon such bond and mort- 



' Per Rapallo, J., in Lord v. Yonkers ' Laws of 1848, ch. 37. 

Fuel Gas Co., 99 N. Y. 547, 556 ; Jones ^Laws of 1867, ch. 480. 

V. Guaranty and Indemnity Co., loi U. ' Davidson v. Westchester Gaslight Co., 

S. 622. 99 N. Y. 558, rev'g Astor v. Westches- 

« Laws of 1872, ch. 374, § 2. ter Gaslight Co., 33 Hun, 333. 



§§126-127.] WHO MAT MOETGAGE AND HOW". 87 

gage shall be a legal obligation and a valid Hen upon the premises or 
property covered thereby, from the date of record thereof.' 

§ 126. Mortgages of the lands of religious corporations. — By 
the common law of England, all corporations capable of acquiring 
property were also capable of aliening it or charging it with the pay- 
ment of debts.* But in the reign of Elizabeth and of her successor, 
several statutes were passed restraining alienations of church property 
by religious corporations, and restricting the power of leasing. These 
statutes forming a part of the law of England at the time of the set- 
tlement of this State by colonists from England, under the charter of 
the Duke of York, became a part of the laws of the colony, although 
they were not afterward re-enacted here.' 

§ 127. Supervisory power of the court. — By Laws of 1813, c. 
60, § 11 (3 Edm. St. 694), it was enacted that it should be lawful for 
the chancellor of this State, upon application of any religious cor- 
poration, in case he should deem it proper, to make an order for the 
sale of any real estate belonging to such corporation, and to direct 
the application of the moneys arising therefrom, by tjie said cor- 
poration to such uses as the same corporation, with the consent and 
approbation of the chancellor, shall conceive to be most for the in- 
terest of the society to which the real estate so sold did belong : jpro- 
vided that the act should not extend to any of the lands granted by 
this State for the support of the gospel. 

The powers formerly exercised by the chancellor are now vested in 
the Supreme Court. 

This statute was a re-enactment of a statute passed in 1806, and 
furnishes evidence that the legislators believed that the common law 
restrained religious corporations from ahenating their property, and 
that they thought it necessary to empower the chancellor to authorize 
such sales to be made." 

The jurisdiction of the Supreme Court to make an order authoriz- 
ing the conveyance of the lands of a religious corporation under this 
statute, depends upon the facts before the court when it makes the 



' Laws of 1884, ch. 68 ; amending Laws 5 Wend. 423, 445 ; Canal Appraisers v. 

of 1869, ch. 629. , The People, 17 Wend. 571, 584. 

» Dutch Church v. Mott, 7 Paige, 77, * De Ruyter v. The Trustees of St. 

83 ; Matter of the Reformed Dutch Peter's Church, 3 Barb. Ch. 119 ; s. c. 

Church in Saugerties, 16 Barb. 237, afiS'd 3 N. Y. (3 Comst.) 238 ; Madison 

241. Avenue Baptist Church v. Baptist Church 

' Canal Commissioners v. The People, in Oliver Street, 46 N. Y. 131, 142. 



88 MORTGAGES OF REAL PEOPEETT. [§§128-129. 

order. Its jurisdiction cannot be upheld by showing that facts ex- 
isted which were in no way placed before the court or brought to its 
attention or considered by it.' And an unauthorized conveyance by 
a religious corporation of its real estate, cannot be held valid because 
it has been executed and deUvered, the purchaser put in possession, 
and the corporation paid the consideration therefor." 

§ 128. When order of court is necessary. — The statute does not 
grant to the courts any power to direct the sale of any of the property 
of a religious corporation. The authority of the court is entirely nega- 
tive, and it can only ratify or refuse to ratify the bargains which the cor- 
porations elect to make.^ It was formerly thought to be necessary 
that the consent of the court should be obtained before any contract 
of sale had been entered into,' but the later decisions are to the effect 
that it is sufficient if such consent be obtained at any time before the 
conveying of the property.' 

It is only where an absolute transfer of the title is contemplated, 
that the consent of the court is necessary. The sale of a pew, where 
the purchaser acquires merely a limited usufructuary right," or the 
conveyance of an easement or right of burial in the churchyard,' do 
not require to be approved by the court. So, the trustees of a relig- 
ious corporation have the power to remove their house of worship 
from one lot to another, or from one village to another, without ap- 
plication to the court." 

§ 129. Where a mortgage is given to secure a debt legally- 
contracted, this is not such a sale of the property as requires an order 
of the court to render it valid." The object of the law is to prevent 
a misapplication of the trust funds," and it is not necessary to invoke 
the sanction of the court, in order to impose a specific lien where a 



' Madison Avenue Baptist Church v. nethy v. Society of the Church of the 

Oliver Street Baptist Church, 73 N. Y. Puritans, 3 Daly, i. 

82. ' Richards v. Northwest Protestant 

' 14. Church, 32 Barb. 42 ; s. c. 20 How. 317 ; 

5 Matter of the Reformed Dutch 11 Abb. 30. 

Church of Saugerties, 16 Barb. 237 ; ° Matter of the Second Baptist Society 

Wyatt V. Benson, 23 Id. 327 ; s. c. 4 in Canaan, 20 How. 324. 

Abb. 182. " Manning v. Moscow Presbyterian 

^ Dutch Church in Garden Street v. Society, 27 Barb. 52 ; Lee v. Methodist 

Mott, 7 Paige, 77. Episcopal Church of Fort Edward, 52 

' Congregation Beth-Elohim V. Central Barb. 116. 

Presbyterian Church, 10 Abb. N. S. 484. "' South Baptist Society of Albany v. 

^ Freligh v. Piatt, 5 Cow. 494 ; Aber- Clapp, 18 Barb. 36. 



§§130-132.] WHO MAY MOBTGAGE AKD HOW. 89 

valid general charge previously existed. But where the mortgage is 
made as security for a loan of money obtained at the time of its exe- 
cution, it would at least be prudent to obtain the approval of the 
court to the transaction. 

§ 130. By whom application to be made. — The application for 
permission to sell or mortgage church property can be made by the 
trustees having control of the temporal affairs of the corporation, 
and it is not necessary that a majority of the corporators should au- 
thorize the trustees to initiate the proceeding.' 

§ 131. Mortgages by charitable societies. — By Laws of 1854, 
c. 50, it is made lawful for the Supreme Court of this State, upon the 
application of any benevolent, charitable, scientific, or missionary so- 
ciety, incorporated by law, in case it shall deem it proper, to make an 
order for the mortgaging of any real estate belonging to said corpo- 
ration, and to direct the application of the moneys arising therefrom, 
by the said corporation, to such uses as the same corporation, with the 
consent and approbation of the said court, shall conceive to be most 
for the interest of the society to which the real estate so mortgaged 
belongs. 

MOETGAGES TO NATIONAL BANKS. 

§ 132. Provision of statute. — The statute of the United States 
under which national banking associations are permitted to be formed, 
authorizes such associations to loan money upon personal security, but 
the following restriction is made as to real estate : 

" A national banking association may purchase, hold, and convey 
real estate for the following purposes and for no others : First, such 
as may be necessary for its immediate accommodation in the transac- 
tion of its business. Second, such as may be mortgaged to it in good 
faith by way of security for debts previously contracted." Third, 
such as shall be conveyed to it in satisfaction of debts previously 
contracted in the course of its dealings. Fourth, such as it shall pur- 
chase at sales under judgments, decrees, or mortgages, held by the 
association, or shall purchase to secure debts to it. But no association 
shall hold the possession of any real estate purchased to secure any 
debts due to it for a longer period than five years." ^ 



1 Madison Avenue Baptist Church v. Vt. 349 ; Woods v. Bank, 83 Pa. St. 57 ; 

Baptist Church in Oliver Street, 46 N. Spafford v. First Nat. Bank, 37 Iowa, 

Y. 131. 181. 

« Howard Nat. Bank v. Toomes, 51 = R. S. of U. S. § 5137. 



90 MOETGAGES OF EEAL PEOPEBTT. [§ 133. 

The language of the statute by implication prohibits a loan upon 
real estate security or the taking of mortgages for money to be ad- 
vanced in the future, and for a time it was supposed that such mort- 
gages were void, and could not be enforced against the persons mak- 
ing them.' 

§ 133. Later decisions. — These decisions have, however, been 
reversed and overruled by the Supreme Court of the United States, 
and the doctrine now established is that the security taken is valid as 
between the bank and its debtor and can be enforced, and that what- 
ever objection there may be to a mortgage for future advances from 
the prohibitory provisions of the statute, that objection can only be 
urged by the government.'^ 

A mortgage to a national bank has, since the later decisions, been 
enforced for future advances.' 

Where a national bank lawfully held a mortgage on real estate, it 
was held that it might protect its interests by purchasing a prior 
mortgage on such real estate, and that it might compel the assignment 
to it of such prior mortgage, the circumstances of the case being such 
as would confer the right to such assignment independent of its cor- 
porate character." So, when a national bank, holding a junior lien, 
pays the prior incumbrance, it may take a new mortgage for its in- 
demnity.' And a national bank may purchase at foreclosure sale the 
land which had been mortgaged to it." 

A national bank may sell its real estate and take back a mortgage 
for the purchase money.' 

A national bank organized as a successor to a State bank, may 
maintain an action to foreclose a mortgage executed to the State bank 
as security for a note and assigned to it by the State bank.' 



'Crocker v. Whitney, 71 N. Y. 161 ; \f. Matthews, 19 Alb. L. J. 132, rev'g Mat- 
Woods V. People's Nat. Bank, 82 Pa. St. thews v. Skinker, 62 Mo. 329. 
57 ; Fowler v. Scully, 72 Pa. St. 456 ; ' Simons v. First National Bank, 93 
Wobds V. Bank, 83 Pa. St. 57 ; Nat. Bank N. Y. 269. 

of Topeka v. Rowill, 2 Dillon (C. Ct. R.) * Holmes v. Boyd, go Ind. 332. 

371 ; Ripley v. Harris, 3 Biss. C. Ct. R. ' Ornn v. Merchant's National Bank, 

190. 16 Kans. 341. 

^National Bank of Genesee v. Whit- ' Heathv.SecondNat.Bank,7oInd.io6. 
ney, 13 Otto, 99, rev'g Crocker v. Whit- ' New Orleans Nat. Bank v. Raymond, 
ney, 71 N. Y. 161 ; s. c. 23 Alb. L. J. 29 La. An. 355 ; s. c. 29 Am. R. 335. 
355 ; First Nat. Bk. of Waterloo v. El- ' Scofield v. State Nat. Bank of Lin- 
more, 52 Iowa, 541 ; Union Nat. Bank coin, 9 Neb. 316 ; s. c. 31 Am. R. 412. 



§§ 134^135.] WHO MAT MORTGAGE AND HOW. 91 

MORTGAGES OF THE LANDS OF INFANTS. 

§ 134:. Ratification of mortgage made during infancy. — A 

mortgage made by an infant is voidable but not void, and he may, 
after coming of age, ratify and confirm it. If the mortgage is given 
on the purchase of the mortgaged property, the mortgage and the 
deed constitute part of the same transaction and it is not competent 
for him to ratify the deed and repudiate the mortgage. By retaining 
the land he will make himself bound by the mortgage.' 

A conveyance of the mortgaged property by the infant after com- 
ing of age in which the mortgage is recognized as valid will amount 
to a ratification,' and a repudiation of the mortgage will not necessa- 
rily be implied by a conveyance which does not mention it." So, 
where an infant, with the approval of his father, obtained money 
upon a mortgage, and after reaching maturity died, leaving a will in 
which he directed " all his just debts to be paid and satisfied," and 
then devised the property to his mother without mentioning the 
mortgage, it was held that the court was justified by the circum- 
stances under which the loan was made, in laying hold of any equita- 
ble construction which could possibly be given to the will, and to 
hold it to be a confirmation instead of an avoidance of the bond and 
mortgage.' 

A part payment of a mortgage executed during infancy, made 
after coming of age, will constitute a ratification of iV 

"Where an infant executed a mortgage, and after becoming of age 
executed a deed of the property to a trustee without receiving any 
consideration, and afterward redelivered and reaffirmed the mortgage, 
this latter act was held to establish the mortgage as a vaUd security 
from its date, and to render it paramount to the title under the deed." 

§ 135. Disaffirmance of a mortgage made during infancy 
must be by some act clearly expressing an intention to do so per- 
formed promptly after coming of age.' If this is attempted to be 



■ Henry v. Root, 33 N. Y. 526, 553 ; ' Palmer v. Miller, 25 Barb. 399. 

Lynde v. Budd, 2 Paige, 191 ; Kitchen * Merchant's Ins. Co. v. Grant, 2 Edw. 

V. Lee, II Paige, 107; Curtis v. Mc- Ch. 544; Hampson v. Suydenham, Nel- 

Dougal, 26 Ohio St. 67 ; CoUis v. Day, son's Ch. R. 55. 

38 Wis. 643. * Keegan v. Cox, 116 Mass. 289. 

^ Lynde v. Budd, 2 Paige, 191 ; Bos- * Palmer v. Miller, 25 Barb. 399. 

ton Bank v. Chamberlin, 15 Mass. 220; ' Loomer v. Wheelwright, 3 Sandf. Ch. 

Allen V. Poole, 54 Miss. 323 ; Losey v. 135. 
Bond, 94 Ind. 67. 



92 MOETGAaES OF EEAL PEOPEETT. [§§ 136-138. 

accomplished by a deed, the document must be of such a nature as to 
be inconsistent with the mortgage, so that both cannot stand together.' 

Where a mortgage executed by a person who was an infant when 
it was executed, but who has since come of age, is attempted to be 
foreclosed, the defense of infancy must be interposed before judg- 
ment. The defendant cannot wait to ascertain whether there will 
be a surplus before questioning his personal liability." 

§ 136. Subrogation.— A person advancing money to pay off an 
incumbrance on the real estate of a person mentally incapable to con- 
tract, is entitled to be subrogated to such incumbrance, and the same 
rule would prevail in the case of an infant.' 

§ 137. A mortgage executed by a guardian of an infant to 
himself, as such guardian, is valid as against him, and on the fore- 
closure of such mortgage, if the entire amount is realized and the 
rights of the infant are thus protected, a valid title will pass which 
a purchaser will be required to accept.* 

§ 138. Proceedings under the statute to mortgage lands of 
infants. — Any infant seized of any real estate, or entitled to any term 
of years in any lands, may, by his next friend or by his guardian, 
apply to the court for the sale or disposition of his property. On 
such application the court appoints one or more suitable persons 
guardians of such infant ; the guardians are required to give bonds, 
and the court then proceeds in a summary manner by a reference to 
inquire into the merits of the application. Whenever it shaU appear 
satisfactorily that a disposition of any part of the real estate of such 
infant, or of his interest in any term of years, is necessary or proper, 
either for the siipport and maintenance of such infant, or for his edu- 
cation ; or that the interest of such infant requires, or will be sub- 
stantially promoted by such disposition, on account of his said 
property being exposed to waste and dilapidation, or on account of 
its being wholly unproductive, or for any other pecuKar reasons or 
circumstances, the court may order the letting for a term of years, 
the sale or other disposition of such real estate or interest, to be made 
by such guardian or guardians so appointed, in such manner and with 
such restrictions as shall be deemed expedient." /i { 

' Buchanan V. Griggs, 24 Northwestern 'Coleman v. Fraser, 3 Ky. 300. 
Rep. 452 ; Eagle Fire Ins. Co. v. Lent, i * Lyon v. Lyon, 67 N. Y. 250. 
Edw. 301. ' Code, § 2348 f if j^?. See also Rules 

^ Flynn v. Powers, 35 How. 279; s. c. 55 to 59. 
affi'd 36 How. 289. 



§§ 139-140.] WHO MAT MORTGAGE AND HOW. 93 

There can be no doubt that the statute authorizes the mortgaging 
of the lands of infants as well as the sale of them, but, in practice, it 
is seldom proper to mortgage when a sale can be made, and it is not 
a common thing to do. The reason for this may be found in the 
fact that to mortgage an infant's land is to run him into debt, and it 
does not often happen " that the interest of such infant requires, or 
wiU be substantially promoted by," the imposing upon him of an 
obligation to pay Interest on borrowed money. 

§ 139. Proceedings under this statute must strictly conform 
to the letter of the law, for the court has no authority outside of 
the enactment.' The infant must be seized of the estate, that is, he 
must hold the legal title, or the proceedings cannot be taken at 
all f but it is said that courts of equity have an inherent jurisdiction, 
independent of statute, to order a sale of the equitable estate of in- 
fants, and upon a similar reason they may also authorize the mort- 
gaging of such equitable interests.^ 

Each and every of the steps prescribed by the statute must be ob- 
served in order to make the mortgage valid. Thus, it is required 
that before a mortgage can be made, the special guardian of the in- 
fant must enter into an agreement therefor subject to the approval of 
the court, and must report the agreement to the court upon oath." A 
disregard of this formality has been held to make the mortgage void." 

The report of the referee on an application to mortgage the lands 
of infants, should contain within itself a specification of the objects 
to which the avails should be applied without requiring an examin- 
ation of the evidence or of any other papers. The final order authoriz- 
ing the mortgage ought also to specify these objects. The duty of 
the special guardian is to apply the money received by him in con- 
formity with the order under which he acts, and he cannot refuse to 
pay a debt directed by such order to be paid on the ground that, in 
his opinion, the infant is not liable therefor." 

§ 140. Costs in proceedings to mortgage lands of infants, 
lunatics, etc. — There is no statute providing for commissions to be 
paid to special guardians appointed in proceedings to sell or to mort- 

' Rogers.-v. Dill, 6 Hill, 415 ; Baker v. ^ Wood v. Mather, 38 Barb. 473 ; In re 

Lorillard, 4 N. Y. (4 Comst.) 257 ; On- Turner, 10 Barb. 552. 
derdonk v. Mott, 34 Barb. 106 ; Battell * Code, § 2356. 
V. Torrey, 65 N. Y. 294. ' Battell v. Torrey, 65 N. Y. 294. 

' Baker v. Lorillard, 4 N. Y. (4 Comst.) ^ Matter of Lampman, 22 Hun, 239 
257 ; Wood V. Mather, 38 Barb. 473. 



94 MOETGAaES OF EEAL PEOPEETT. [§ 141. 

gage infants' real estate. Nor is there any fixing the cost and ex- 
pense wHieh may be allowed in conducting the same, and no pro- 
vision is made for attorney's fees or the expenses of a reference. AU 
the costs and allowances which can be charged upon the fund are 
within the discretion of the court, and are fixed and provided for in 
the standing rules. From the time the proceedings are initiated for 
the purpose of securing a sale, mortgage, or lease of an infant's real 
estate he is made a ward of the court and the proceeds of the sale are 
Tinder its care and protection.' The special guardian who is to repre- 
sent the infant, is named by the court to do such service and make 
such inquiries as may be required of him, and he has no other duty 
to perform. He is entitled to such compensation for his services as 
the court may deem reasonable.' In this respect he stands in the 
same relation to the court as special guardians who are appointed in 
actions and other proceedings.^ 

INSANE PEESONS. 

§ 141. A mortgage executed by a person of unsound mind, 

who has been duly found by inquisition to be insane, is presumably 
void. This presumption may be overcome by evidence, and where 
the evidence shows that such person, though weak in body and feeble 
in mind, is not devoid of reason and judgment, and has a fair mem- 
ory, he will be held competent to make a valid mortgage.* 

In an action upon a contract made by a person found by inquisition 
to have been insane at the time of making it, the plaintiff can recover 
only by showing that the defendant was sane at that time, or that the 
consideration moving to him was of such a nature that justice and 
equity require the claim to be paid out of his estate." "Where a bond 
and mortgage were executed by one who was, in fact, insane, to secure 
a loan made to her in good faith, without fraud or unfairness, and 
without knowledge of the insanity or notice or information calUng for 
inquiry, of which loan the lunatic had the benefit, they were held to 
be. valid and binding, and that the fact that she was afterward, upon 
inquisition taken, declared to be insane, did not affect their validity." 



■ Code, § 2360. ' Rule 50. » Hicks v. Marshall, 8 Hun, 327. 

s Matter of Matthews, 27 Hun, 254, 'Mutual Life Ins. Co. of N. Y. v. 

affi'd 90 N. Y. 688. Hunt, 79 N. Y. 541, affi'g s. c. 14 Hun, 

* Hirsch v. Trainer, 3 Abb. N. C, 274, 169. 
and note. 



§§142-143.] WHO MAT MORTGAGE AKD HOW. 95 

§ 142. Mortgages of the lands of lunatics and habitual drunk- 
ards. — Any idiot, lunatic, or person of unsound mind, seized of any 
real estate, or entitled to any term for years in lands, may, by com- 
mittee duly appointed, apply to the Supreme Court for the sale or 
disposition of them. Proceedings must be taken in most respects 
quite similar to those on an application to dispose of the real estate of 
an infant ; a bond should be given by the committee, and the court will 
make the order whenever it shall be made to appear to be for the in- 
terest of such idiot, lunatic, person of unsound mind, or habitual 
drunkard.' 

As in the case of the estates of infants, it is generally better to re- 
lieve the necessities of lunatics and drunkards by selling their prop- 
erty than by mortgaging it. 

§ 143. Jurisdiction of the court over lands of insane persons. — 

The fihng of a petition which shows the existence of a valid outstand- 
ing debt of the lunatic, requiring the disposition of his real property 
to enable the committee to pay, vests the court with jurisdiction of 
the subject matter under the act,* and such jurisdiction would not be 
diverted by subsequent irregularities in the proceeding, unless they 
were taken in violation of some express provision of the statute.* By 
section 1 of title 2 of the act in question, the Supreme Court is in- 
vested with general jurisdiction over the persons and property of lu- 
natics and persons of unsound mind, and except as restrained and 
limited by the provisions of the statute, has power and authority to 
direct the plan and method of their custody, and such disposition of 
their property as in its judgment is for the best interest of the luna- 
tic. This jurisdiction is in no sense a limited jurisdiction to be exer- 
cised as in the case of special proceedings authorized by statute, but 
pertains to the general jurisdiction of the court, and is limited only by 
the express requirements of the statute." The powers conferred are 
similar to those formerly vested in the Court of Chancery, and the 
care and custody of the persons and property of lunatics and others 



' 2 R. S. 53, § II ; Laws of 1864, ch. Pr. 59 ; Fisher v. Hepburn, 48 N. Y. 50 ; 

417) § 5 i Laws of 1869, ch. 627 ; Laws People ex rel. Johnson v. Nevins, i Hill, 

of 1874, ch. 446, title 2, § 9 ; §§ 2345 to 154 ; Cole v. Hall, 2 Id. 625 ; Matter of 

2364 of the Code. Empire City Bank, 18 N. Y. 199 ; Mohr 

' Laws of 1874, ch. 446, title 2. v. Manniere, loi U. S. 418. 

^ Agricultural Ins. Co. v. Barnard, 96 * Per Ruger, Ch. J. , in Agricultural 

N. Y. 525, 531 ; Bangs V. Duckinfield, 18 Ins. Co. v. Barnard, 96 N. Y. 525, 531, 

N. Y. 592 ; D'lvernois v. Leavitt, 8 Abb. rev'g 26 Hun, 302. 



96 MOETGA&ES OF REAL PEOPEETT. [§ 144.' 

of unsound mind, wHcli was formerly exercised by the cliancellor, 
is now confided to the Supreme Court. These powers are usually 
exercised by the court through a committee, and he acts as the officer 
of the court, and is always subject to its control and direction.' Even 
the entire omission by the committee to give a bond on the applica- 
tion was held not to afEect the validity of the proceeding.'' 

The jurisdiction given to the court under the Revised Statutes in 
reference to the sale, mortgage, or lease of the real estate of a lunatic, 
is, however, a special statutory one, and can only be exercised as the 
statute directs. So, where an order to sell and convey the real estate 
of a lunatic recited the necessity of the sale to be only for the support 
of the family of the lunatic, it was presumed that the court made the 
order for that purpose and disregarded other grounds stated in the 
petition. The act of 1864 does not authorize a sale for that purpose, 
but only for the support and education of the infant himself and the 
promotion of his interests for the reasons specified in the statute." 

The portion of the Revised Statutes and the statutes giving to the 
court power to sell or mortgage the lands of lunatics and other in- 
competent persons, were repealed in 1880,' at the time of the enact- 
ment of the portions of the Code of Civil Procedure having reference 
to the same subject.' The question as to whether the jurisdiction 
given by the Code is general or special has not been judicially passed 
upon. 

MOETGAGBS OF LANDS OF DECEASED PEES0N8 TO PAY DEBTS. 

§ 144. Jurisdiction of surrogate. — After the executors or admin- 
istrators of any deceased person shall have made and filed an inven- 
tory according to law, if they discover the personal estate of their 
testator or intestate to be insufficient to pay his debts, they may, at 
any time within three years after the granting of their letters testar 
mentary or of administration, apply to the surrogate for authority to 
mortgage, lease, or sell so much of the real estate of their testator or 
intestate as shall be necessary to pay such debts." 

The application to the surrogate should be by petition, and the 
method of procedure intended for the protection of the rights of the 
various parties in interest, is quite fully set forth in the Code of Civil 



'Agricultural Ins. Co. v. Barnard, ' Matter of Valentine, 72 N. Y. 187. 
96 N. Y. 525 ; Matter of Lynch, 5 Paige, * Laws of 1880, ch. 245. 
120. ' Sec. 2345 et seq. 

^ Agricultural Ins. Co. v. Barnard, 96 * Code of Civ. Pro. § 2749 et seq. ; 2 

N. Y. 525. R. S. 100, § I. 



§§ 145-146. j WHO MAY MORTGAGE AND HOW. 97 

Procedure, tlie numerous statutes in force before the passage of the 
Code being now repealed.' 

§ 145. The heir or devisee may sell or mortgage land at any 
time after the death of his ancestor or testator, but the purchaser or 
mortgagee takes subject to the right of the administrator to have the 
same sold for the payment of debts. The habihty of the land for 
such debts, in case of a deficiency of assets, is a statutory hen running 
with the land for three years." But if a mortgage subject to such a 
lien has been foreclosed, and a surplus remains after paying the mort- 
gage debt, such surplus is the primary fund for the payment of debts, 
and must be resorted to before any attack can be made on the lands 
in the hands of the purchaser, even though the administrator was not 
a party to the foreclosure.' 

MOETQAGES OF BUEIAL AND CEMBTEET LOTS. 

§ 146. Cancelling exemption of private burial lots. — The new 

Code of Civil Procedure makes a change in the law relative 
to the mortgaging of exempt property, including private or family 
burying lots and homesteads. A mortgage executed after May 1, 
18Y7, upon property so exempt, is ineffectual until the exemption has 
been cancelled by the recording of a certificate subscribed and ac- 
knowledged by the mortgagor, except that such mortgage is vahd to 
the extent of the purchase money of the same property secured 
thereby." 

Such exemption may be created under Sections 1396 to 1399 of 
the Code as to land set apart as a family or private burial-ground, or 
as to a lot of land occupied as a residence by a householder having a 
family, or by a married woman. The terms upon which such ex- 
emptions may be secured, and its extent, are set forth in the sections 
cited. 

Previous to this provision of the Code, it had been held that an 



' Code of Civ. Pro. § 2749 et seq. See monds' edition of the statutes, as follows : 

2 R. S. loo, § I ; Laws of 1837, c. 460, Vol. II., p. 102 ; Vol. IV., pp. 494, 499, 

%H.o et seq.; Laws of 1843, c. 172 ; Laws 506,508; Vol. VI., pp. 126, 142, 234; 

of 1847, c. 298 ; Laws of 1850, c. 82 ; Vol. VII., pp. 433, 485 ; Vol. IX., pp. 

Laws of 1850, u. 150 ; Laws of 1850, c. 327, 585. 

162 ; Laws of 1863, c. 362, § 6 ; Laws of ^ Hyde v. Tanner, i Barb. 75 ; Laws 

1863, c. 400 ; Laws of 1864, c. 71, § 9 ; of 1837, t. 460 ; Laws of 1869, t. 845 ; 

Laws of 1869, c. 260 ; Laws of 1869, c. Laws of 1873, c. 211. 

845 ; Laws of 1872, c. 92 ; Laws of 1873, ^ Brevoort v. Mcjimsey, i Edw. 551. 

c. 211. Said statutes may be found in Ed- *Code of Civ. Pro. § 1404. 

7 



98 MOETGAGES OF EEAL PROPEETY. [§ 147. 

agreement to waive an exemption, when made part of the transaction 
out of which the indebtedness arose, is void as against public policy.' 
It had also been held that a homestead exemption could be waived by 
a separate instrument executed simultaneously with a mortgage given 
to secure a precedent debt, and accompanied with the surrender of 
collateral securities ; but that such waiver in favor of the mortgagee 
operated to discharge the exemption so as to let in the hen of a prior 
judgment.' 

§ 147. Lots in public cemeteries. — A statute declaring that 
cemetery lots shall not be liable to sale on execution does not preclude 
mortgaging such lots, nor does it prevent a foreclosure of such mort- 
gage by their sale. Such a statute does not apply to a voluntary act 
of the owner affecting the title, and a mortgage of a burial lot is not 
void as against public policy. A mortgage of a burial lot in Green- 
wood Cemetery has on these principles been enforced by a judgment 
of foreclosure and sale.' 

In the case above referred to there had been no interment in the 
lot mortgaged, and, in a later case, it was held at special term, 
by Yaih Voest, J., that where a person has taken a conveyance of a 
burial lot and has made interments therein of the dead of his family, 
it is in such condition that it cannot be mortgaged to secure payment 
of a debt or the return of money borrowed. The mortgage was in 
the form of an absolute conveyance, and the mortgagee notified the 
mortgagor to remove the bodies of his buried children, with a threat 
that if the mortgagor did not he would. An injunction to restrain 
such removal was sustained. The burial lot was situated in Green- 
wood Cemetery, the charter of which did not contain, in terms, any 
absolute restraint upon the power of voluntary alienation of a ceme- 
tery lot by an owner.' 

By section 11 of chapter 133 of the Laws of 1847, entitled " An 
act authorizing the incorporation of rural cemeteries," it is provided 
that when plots or lots shall be transferred to individual owners, and 
after there shall be an interment in a lot or plot so transferred to in- 
dividual owners, such plot or lot, from the time of such interment, 
shall be forever after inahenable, and shall, upon the death of the 



' Harper V. Leal, lo How. 276 ; Kneet- 'Lantz v. Buckingham, 11 Abb. N. S. 

tie V. Newcomb, 31 Barb. i6g, affi'd 22 64 ; s. c. sui nam. Lautz v. Buckingham, 

N. Y. 249. 4 Lans. 484. 

" Smith V. Brackett, 36 Barb. 571. * Thompson v. Hickey, 59 How. 434. 



§ 148.] WHO MAT MOETGAGE AND HOW. 99 

holder or proprietor thereof, descend to the heirs at law of such 
holder or proprietor, and to their heirs at law forever ; and chapter 
310 of the Laws of 1879 declares that it shall not be lawful to mort- 
gage land used for cemetery purposes, or to apply it in payment of 
debts. 

§ 148. Mortgages of burying-grounds by church or religious 
corporations. — It is provided by Laws of 1842, c. 215, that it shall 
not be lawful for any church or religious corporation to mortgage 
any burying-gronnd used for the interment of human remains, for 
the use of which they shall have received compensation, without the 
previous consent, in writing, of three-fourths in number of the con- 
gregation or society of such church or corporation ; which consent 
shall be proved or acknowledged, in the same manner as deeds are 
now required by law to be proved or acknowledged, and shall there- 
upon be recorded in the oflBce of the register of the city, or clerk of 
the county in which such burying-ground is situated. 



' CHAPTEE V. 



EXTENT OF THE LIEN, AKD REMEDIES OK ACCOtrNT OP 

WASTE. 



LIEN OF A MORTGAGE ON A RIGHT OF 
ACTION FOR DAMAGES TO THE ESTATE. 

§149. A mortgage carries with it the 
prior right to damages. 

150. The remedy of mortgagee confined 

to the award. 

151. Dedication to public use. 

152. NewYorlc City streets. 

153. Mortgage lien on undivided inter- 

est. 

MORTGAGES ON LEASEHOLD ESTATES. 

154. Lien on lease and renewals. 

155. Liability of mortgagee for rent. 

156. Redemption by mortgagee from 

default of mortgagor. 

157. The giving of a mortgage on a 

lease. 

MORTGAGES BY RAILROAD COMPANIES. 

158. After acquired rolling stock. 

159. After acquired real estate. 

LIEN UPON EMBLEMENTS. 

160. A mortgage is a lien upon grow- 

ing crops. ' 

161. Use of emblements by mortgagor. 

162. Remedies of mortgagee. 

163. Growing crops and timber. 

164. Nursery trees. 

165. Rights of purchaser at foreclosure 

sale. 

WHAT ARE FIXTURES AS BETWEEN MORT- 
GAGOR AND MORTGAGEE. 

166. General rule. 

167. Time of annexation. 

168. Tests. 



§169. The permanent character of the 
annexation. 

170. Intention in making annexation. 

171. Examples of what does not pass 

with the land. 

172. Examples of what passes with the 

land. 

RULE AS TO FIXTURES BETWEEN LESSOR 
AND LESSEE. 

173. As between lessor and lessee. 

174. Structures erected by a lessee. 

CONFLICTING CLAIMS TO CHATTELS AF- 
FIXED TO MORTGAGED REALTY. 

175. As against chattel mortgage. 

176. If chattels affixed to land. 

177. A curious question. 

178. The intention of the owner. 

179. Character of annexation. 

180. Examples. 

INJUNCTION TO RESTRAIN WASTE. 

181. When injunction allowed. 

182. Provision of the Code. 

183. Who may apply for injunction. 

184. Inadequacy of security. 

^ 185. Insolvency of mortgagor. 

186. Limitations of injunction. 

187. General principle. 

ACTION FOR DAMAGES CAUSED BY WASTE. 

188. Remedy of mortgagee against per- 

sons who have committed waste. 

189. Intent to injure security. 

190. Measure of damages. 

191. Miscellaneous examples. 



LIEN OF A MOETGAGE 



ON A EIGHT OF ACTION FOE DAMAGES TO 
THE ESTATE. 



§ 149. A mortgage carries with it the prior right to damages 

awarded for an injury done to the freehold, whereby the security has 
been impaired, especially where the debtor is insolvent. When 



§ 150.] EXTENT OE THE LIEN. 101 

damages are awarded for a public improvement, they arise from or 
grow out of the land, by reason of the injury which has diminished 
its value. In equity they are the land itself, for the award takes the 
place of the reduced value of the land.' The title to the land, to 
the extent of his lien, is in the mortgagee,' and he has an equitable lien 
on the award for the amount of his debt.' 

If an award be made to the mortgagee for lands taken for a pubUc 
improvement, the lien of the mortgage is thereby transferred to the 
award ; it cannot be foreclosed as against the lands thus taken, and 
the proper remedy is by a regular proceeding to obtain the award." 
But if no award is made to or received by the mortgagee, he cannot 
bring an action against the public to obtain the award, and, his lien 
not being destroyed or taken away, his only remedy is by fore- 
closure.' 

The lien of a mortgage has been held to extend to damages award- 
ed to the owners of land for depreciation of the value of mill prop- 
erty, occasioned by the abandonment of a canal.' 

Where land, under the charter of a railroad was condemned for 
the use of the company, and the mortgagor alone was made a party 
to the proceeding, it was held that the mortgagee was entitled to have 
the sum awarded applied toward the payment of the mortgage and 
the rest of the land held for the balance.' 

§ 150. The remedy of mortgagee confined to the award. — 
Where, by a regular proceeding, title to mortgaged land is taken for 
public use, the municipal corporation acquiring such title cannot 
thereafter be foreclosed, for the reason that it holds by a right-para- 
mount to the mortgage, and the only remedy remaining to the mort- 
gagee must be against the award or against the person who has col- 
lected it." The title of the mortgagor to the land being extinguished 

' Bank of Auburn v. Roberts, 44 N. ^Shepard v. The Mayor, etc., of New 

Y. 192, affi'g s. c. 45 Barb. 407. York, 13 How. 286 ; Hooker v. Martin, 

^ Stow V. Tifft, 15 Johns. 458. 10 Hun, 302 ; Colehour v. State Savings 

' Bank of Auburn v. Roberts, 44 N. Y. Institution, 90 111. 152. 

192, affi'g s. c. 45 Barb. 407; Astor v. ^ Sherwood v. The Mayor, etc., of New 

Hoyt, 5 Wend. 603 ; Gimbel v. Stotle, 59 York, 11 Abb. 347. 

Ind. 446 ; Park Commissioners v. Todd, * Bank of Auburn v. Roberts, 44 N. 

112 111. 379 ; Wood V. Westborough, 140 Y. 192, affi'g 45 Barb. 407. 

Mass. 403 ; contra under special statute. ' Bright v. Piatt, 32 N. J. Eq. 362 ; 

Whitney v. City of New Haven, 45 Conn. Wheeler v. Kirtland, 12 C. E. Gr. (N. J.) 

303 ; City of Norwich v. Hubbard, 22 534 ; Wood v. Westborough, 140 Mass. 

Conn. 587 ; Mills v. Shepard, 30 Conn. 403. 

loi. ' Hooker v. Martin, 10 Hun, 302 ; 



102 MORTGAaES OF EEAL PKOPEKTY. [§§151-152. 

by the proceedings of eminent domain, the purclaaser under a subse- 
quent foreclosure of the mortgage acquires no title either to the land 
taken or to the award representing it, which may still be collected of 
the mortgagee if necessary to satisfy his demand, and the balance after 
payment of the debt is the property of the owner of the equity of 
redemption.' 

In Slicer v. Hyde Pa/rk (55 Yt. 481), it was held that a mortgagee 
of a farm is not entitled to a decree of foreclosure against a town as 
to its interest in a highway, although it was laid through the mort- 
gaged premises after the execution of the mortgage ; the damages were 
paid to the mortgagor, no notice was given to the mortgagee, and the 
property was worth less than the debt, for the reason that the town 
did not acquire the title to the highway, but the people only secured 
an easement. 

§ 151. Dedication to public use. — While a mortgagee cannot be 
bound by a donation of a portion of the mortgaged property for a 
public use made by the mortgagor without his consent, still he may 
be bound by his express consent thereto by acts equivalent to a posi- 
tive donation or by way of estoppel, and his consent may sometimes 
be implied from his making no objection or by his subsequent acts.' 
Thus, where lands covered by a mortgage were in part afterward laid 
out by the mortgagor as a public street and occupied and treated as 
such by the municipal authorities, and subsequently the mortgagee 
released part of the premises adjoining the street and described it as 
bounding on the street, it was held that the lands lying in the street 
were, as against the mortgagee, subject to the public rights acquired 
by the dedication.' 

§ 153. New York City streets. — The terms of the statutes regu- 
lating the opening of streets and avenues in the city of New York 
show that the report of the commissioners is not to be conclusive as 
to the persons entitled to the damages to be awarded, because it is 
provided that, even after payment to the person named in the award, 
the rightful claimant of the damages may recover them of the per- 
son thus paid, and further, that before the person named in the 
award can recover the amount thereof of the city, he must prove 



Matter of opening Eleventh Avenue, 8t ' Home Ins. Co. v. Smith, 28 Hun, 

N. Y. 437, 453 ; Home Ins. Co. v. 296, 301. 

Smith, 28 Hun, 296, 300 ; Slicer v. Hyde ' Smith v. Heath, 102 111. 130. 

Park, 55 Vt. 481. ' Vreeland v. Torrey, 34 N. J. Eq. 312. 



§§ 153-154. J EXTENT OF THE LIEN. 103 

not only the report of the commissioners, but his right and title to 
receive the same.' 

The final report of the commissioners, when confirmed by the 
court, is conclusive so far as to determine the value of the property 
taken, and to preclude all persons from thereafter making any claim 
to the land, their exclusive remedy being against the award.^ The 
ascertainment of the names of the persons whose lands are taken, and 
to whom damages are to be paid, is merely incidental to the main 
purpose, which is for the guidance of the city authorities and the 
protection of the city. The city will be justified in paying the per- 
son named in the award, unless it has received notice of an adverse 
claim ; but after such notice, and certainly after suit commenced 
for the award, by a mortgagee or other person, the city would pay 
at its peril ; and in the case of conflicting claims the city may com- 
pel an interpleader, and thus relieve itself from embarrassment or 
double responsibility.' 

§ 153. Mortgage lien on undivided interest. — The Code pro- 
vides, with reference to actions to partition real estate, that " the 
plaintiff may at his election make a creditor, having a lien on an un 
divided share or interest in the property, a defendant in the action. 
In that case he must set forth the nature of the lien, and specify the 
share or interest to which it attaches. If partition of the property is 
made, the lien, whether the creditor is or is not made a party, shaU 
thereafter attach only to the share or interest assigned to the party 
upon whose share or interest the lien attached ; which must be first 
charged with its just proportion of the costs and expenses of the 
action, in preference to the lien." * 

MORTGAGES ON LEASEHOLD ESTATES. 

§ 154. Lien on lease and renewals. — When a leasehold interest 
is mortgaged, the mortgagee acquires a lien upon the entire rights 
of the mortgagor under the lease, including the covenants of renewal. 
If the mortgagor obtains a renewal of the lease, either because of the 
covenants contained in it, or from his being in possession as tenant, 
or from his having such particular interest, such renewal inures to 



' Rev. L. of 1813, ch. 86, §§ 183, 184, ^gpears v. Mayor, etc., of N. Y., 87 

vol. 2, p. 418 ; Spears v. Mayor, etc., of N. Y. 359, 374 ; Barnes v. Mayor, etc., 

N. Y., 87 N. Y. 359, 373. of N. Y., 27 Hun, 236 ; Hatch v. Mayor, 

'Matter of Munson, 29 Hun, 325, etc., 82 N. Y. 436. 

337. * Code of Civ. Pro. § 1540. 



104 MOETaAGES OP EBAL PROPERTY. [§ 155. 

the benefit of the mortgagee, and his lien attaches to it ; ' and the 
mortgage Hen extends to a right of renewal even if no renewal has 
been obtained.^ This is particularly so in the case of church leases, 
leases from trustees of charities, or from other persons where there is 
but a slight probabihty of the renewal being refused, if the tenant 
consents to pay the increased rent which the landlord may think 
proper to require.' Upon a similar equitable principle, it is also the 
rule that where a mortgagee, by reason of being in possession, obtains 
a renewal of a lease in his own name, it is treated as a continuance 
of the old lease, and he must hold it for the mortgagor, and subject 
to his right to redeem." 

A mortgage given by a lessee upon the leasehold interest does not 
give the mortgagee any right to the rents coming from the tenants 
of the mortgagor." 

The mortgagor cannot confess away or release the rights of the 
mortgagee in the premises ; and if the lease contains a clause for for- 
feiture in case of waste, the mortgagee's rights cannot be divested 
without his consent or judicial decree." 

§ 155. Liability of mortgagee for rent. — The mortgagee of a 
term, who has never taken possession, is not an assignee of the whole 
term or liable for the rent, the mortgage being but a security, and 
the legal title remaining in the mortgagor.' A naked right and a 
beneficial enjoyment are distinguishable,' and it is only where a mort- 
gagee takes possession that he has the estate cum onere, and becomes 
liable as assignee upon the covenants contained in the lease." But a 
mortgagee who forecloses and purchases the property, and goes into 
possession, is liable for rent, and may be dispossessed for non-payment." 

1 Slee V. Manhattan Co., i Paige, 48 ; 5 Id. 603 ; Evertson v. Sawyer, 2 Id. 

Jiolridge v. Gillespie, 2 Johns. Ch. 30; 507; Johnson v. Sherman, 15 Cal. 287; 

MoUer v. Duryee, 21 W. Dig. 458. Broman v. Young, 35 Hun, 173, 180. 

' MoUer v. Duryee, 21 W. Dig. 458 ; ' Demainville v. Mann, 32 N. Y. 207. 

Sheehan v. Mayer, 41 Hun, 6og. • ° Tallman v. Brassier, 65 Barb. 369 ; 

' Phyfe V. Warden, 5 Paige, 268, and Astor v. Miller, 2 Paige, 68 ; Eaton v. 

cases cited ; Gibbes v. Jenkins, 3 Sandf. Jaques, Doug. 454 ; Walton v. Cronly, 

Ch. 130, and cases cited ; Wunderlich v. 14 Wend. 63 ; Broman v. Young, 35 

Reis, 31 Hun, I, and cases cited ; Mitchell Hun, 173, 180; Booth v. Kehoe, 71 N. 

y. Reed, 61 N. Y. 123. Y. 341, 343. 

* Holridge v. Gillespie, 2 Johns. Ch. 30. '° People ex rel.Grissler v. Stuyvesant, 

' Polhemus v. Trainer, 30 Cal. 685. 3 N. Y. Sup. (T. & C.) 179 ; s. c. i Hun, 

" Allen V. Brown, 60 Barb. 39. 102 ; s. c. afB'd 58 N. Y. 323 ; Post v. 

' Astor V. Miller, 2 Paige, 68 ; Walton Kearney, 2 N. Y. (2 Comst.) 394 ; The 

V. Cronly, 14 Wend. 63 ; Astor v. Hoyt, State v. Martin, 14 Lea (Tenn.) 92. 



§§ 156-157.] EXTEKT OP THE LIEN. 105 

§ 156. Redemption by mortgagee from default of mort- 
gagor. — It is provided by Laws of 1842, c. 240, that, in case the 
mortgagor of a term be removed from the premises by summary 
proceedings under the statute for non-payment of rent, if the unex- 
pired term of the lease under which the premises are held, exceed 
five years at the time of issuing the warrant upon such proceedings, 
any mortgagee of the lease, or of any part thereof, who shall not be 
in possession of the demised premises, who shall, within one year 
after the execution of such warrant, pay all rent in arrear, all costs 
and charges, and perform all the agreements which ought to have been 
performed by the first lessee, shall not be affected by such recovery. 

Whenever any half year's rent or more is due from the lessee, and 
the landlord proceeds by ejectment to recover the possession of the 
property, the time within which the lessee, his assigns or personal 
representatives, may redeem, by paying the rent in arrear and costs 
and charges, is limited by statute to six months after possession of 
the demised premises shall have been taken by the landlord under 
any execution issued upon a judgment obtained by him in any such 
action of ejectment, after which time the. lessee and his assigns, and 
all other persons deriving title under the said lease from such lessee, 
are barred and foreclosed from all relief or remedy in law or equity.' 
But in order to bar a mortgagee of the lessee from a right to redeem, 
the writ of possession must be executed by an open, visible, and 
notorious change of possession, and unless such possession is given it 
is not sufficient to set running the six months' limitation." 

§ 157. The giving of a mortgage on a lease is not a violation 
of a covenant not to assign, inasmuch as a mortgage of land in this 
State is not a grant of the legal title or of the possession, but a mere 
security.' Neither is such a covenant violated by a sale under a judg- 
ment of foreclosure. Such a sale is a judicial sale in a hostile pro- 
ceeding, a sale m mvitum, and such sales are held not to violate this 
covenant.* Such covenants are restraints which courts do not favor. 



'2 R. S. 506, §§ 33, 34; Witbeck v. 406; Piatt on Leases, 258 ; Doe v. Hogg, 

Van Rensselaer, 64 N. Y. 27. 4 Dowl. & Ry. 226 ; Doe v. Beavan 

* Newell V. Whigham, 102 N. Y. 20 ; 3 Manl. & Sel. 353. 
23 W. Dig. 543 ; Keeler v. Keeler, 102 "Riggs v. Purcell, 66 N. Y. 193, 200; 

N. Y. 30. Doe V. Carter, 8 Term. R. 57 ; Jackson 

^Riggs V. Purcell, 66 N. Y. 193, 200 ; v. Corliss, 7 Johns. 531 ; Smith v. Put- 
Taylor's Landlord and Tenant (2d ed.) nam, 3 Pick. 221. 



106 MOETaAGES OF EEAL PEOPERTT. [§§ 158-159. 

They are regarded with the utmost jealousy, and very easy modes 
have always been countenanced for defeating them.' 

MOETGAGES BT EAILEOAD COMPANIES. 

§ 158. After acquired rolling stock. — The question as to whether 
the rolHng stock of a railroad, that is to say, the cars aiid locomotives 
used with the road, are fixtures, so as to pass under a mortgage of the 
track or roadway, has been much discussed, and though there have 
been conflicting decisions in this State, the Commission of Appeals 
has put an end to the controversy by deciding in Soyle v. Plattsburgh 
& Montreal E.E. Co. (54 N. Y. 314), that the cars used on a rail- 
road are personal property, and do not pass with a mortgage of the 
real estate. The rolling stock of a railroad is originally personal in 
its character ; it is subservient to a mere personal trade, the transpor- 
tation of freight and passengers, and the track exists for the use of 
the cars rather than the cars for the use of the track. There is no 
annexation, no immobihty from weight, there is no localization in use. 
The only element on which an argument can be based to support the 
character of realty is adaptation to use with and upon the track. 
Even in respect to this were the same contrivances adopted by a 
tenant for use in his trade upon leased lands, his right to remove both 
cars and track would be beyond question.' 

It being established that rolling stock is personal property, it would 
seem to follow that, even if rolling stock be described in a mortgage, 
the mortgage would not cover such cars as might subsequently be ac- 
quired by the road, though as to this point a contrary view has been 
taken in a number of cases outside of this State." 

§ 159. After acquired real estate. — ^Neither a man nor a corpo- 

' Church V. Brown, 15 Ves. 265 ; Blen- stock passes with the mortgage of the 

cow V. Bugby, 2 W. Black. 766 ; Tay- real estate, The Farmers' Loan & Trust 

lor's Landlord and Tenant, §§ 402, 403 ; Co. v. Hendrickson, 25 Barb. 484. 
2 Piatt on Leases, 250. ' Coe, trustee, v. Pennock, 6 Am. Law 

^ Per Johnson, C, in Hoyle v. Platts- Reg. 27 ; s. c. 23 How. U. S. 117 ; Phil- 
burg & Montreal R.R. Co., 54N. Y. 314, lips v. Winston, i B. Mon. 431 ; Pierce 
affi'g s. c. 51 Barb. 45 ; s. c. sub nom. v. Emery, 32 N. H. 484 ; Buck v. Sey- 
Bement v. Plattsburgh & Montreal R.R. mour, 46 Conn. 146 ; Morrell v. Noyes, 
Co., 47 Id. 104 ; Stevens v. The Buffalo 56 Me. 458 ; Shaw v. Bill, 95 U. S Rep. 
& N. Y. R.R. Co., 31 Id. 590; Beards- 15 ; Philad., etc., R.R. Co. v. Woelpper, 
ley V. The Ontario Bank. 31 Id. 619 ; 64 Penna. St. 366; Walker v. Vaughan, 
Minnesota Co. v. St. Paul Co., 2 Wall. 33 Conn. 577 ; Williamson v. N. J. South. 
(U. S.) 609, and note ; Pierce v. Emery, R.R. Co., 15 Alb. L. J. 503, and cases 
32 N. H. 484. Contra, that the rolling cited. 



§ 159.] EXTENT OF THE LIEN. 107 

ration by general terms only can mortgage so far as subsequent pur- 
chasers and creditors are concerned, everytMng that it may there- 
after acquire through all time ; for this would be a mere pledge of its 
capacity of acquisition, and would afford no sort of indication of what 
was to pass under the instrument. A distinction is made by some of 
the authorities between mortgages of future acquisitions executed by 
railroad companies and similar instruments made by natural persons. 
It is said that a mortgage of a railroad and its future property will 
carry all after-acquired property appurtenant to and necessary for 
building and operating the road, and carrying out the purposes for 
which it was created, while a similar instrument will be inoperative 
if executed by a private person. This is true if the mortgage ex- 
ecuted by the private person is upon a specified piece of property, 
without reference to any accretion or addition to it ; because there can 
be no accretions of property appurtenant to the person of the mort- 
gagor ; but it is untrue, if the individual has mortgaged his business 
and the property there appurtenant to, or afterward to grow out of 
and be added by accretion to the particular business that is pledged. 
Thus, a natural person equally with a corporation can execute a valid 
mortgage of a ship and the profits of its voyage, or of a factory and 
the machinery then in it and to be placed in it, or of a farm and the 
products to be produced upon it, or a flock of sheep and its natural 
increase and future-grown wool. And so a railroad company can ex- 
ecute in general terms a valid mortgage of its roadbed and franchises, 
and all of its real and personal property then owned or thereafter 
acquired : provided the future acquisitions be such as belong naturally 
to the business of constructing and maintaining the road and its pri- 
mary end as a common carrier of passengers and freights. The things 
which may be deemed essential or useful, and therefore appurtenant 
to the great work of building and operating a railroad, will frequently 
be more extensive and varied in their character than those which can 
properly be regarded as accretions to the business of a private person ; 
but the principle is the same, and where the facts concur, the law must 
be the same as to both.' 

A mortgage of all the railroad of said company " as the same is now 
or may be hereafter located or constructed, and all the lands that are 



' Per Chalmers, J., in Mississippi (Miss.), 24 Alb. L. J. 269 ; Elwell v. 
Valley Railway Co. vs. Chicago, St. Grand St. & Newtown R.R. Co., 67 
Louis & New Orleans Railway Co. Barb. 83. 



108 MOETGAGBS OF EEAL PEOPEETT. [§ 160. 

or may be included in the location of the road or required by said 
company for the purpose of the railroad," etc., covers lands purchased 
after making the mortgage if within the lay-out of the road, or need- 
ed for the purposes of the road, but not otherwise.^ 

Where a railroad is mortgaged by a description which minutely 
designates the line of road, specifying the land on which it is located 
necessary for the use and occupation of the road, its rolling stock, 
etc., and adds, "and all rights, privileges, franchises, and property 
whatsoever, now belonging or to be acquired by said," etc., this will not 
include property owned by the corporation not used or to be used iu 
connection with its railroad.^ Such a mortgage does not cover the 
future earnings of the road.^ 

A mortgage given by a railroad will not override a lien given for 
purchase money on property thereafter acquired, though such lien be 
not recorded." 

LIEN UPON EMBLEMENTS. 

§ 1607 A mortgage is a lien upon growing crops and emble- 
~meSEs^en though they be sown after its execution, and they will 
pass to a purchaser upon foreclosure as against either the mortgagor 
or his vendee or lessee. ° This appears to be in accordance with the 
principle that where the determination of an estate depends upon the 
voluntary act of the owner thereof, or where the estate is defeasible 
by a right paramount, or by a forfeiture or breach of condition de- 
pending on his own act or omission, he who has the paramount right, 
or who enters for the forfeiture or breach of condition, is entitled to 
the emblements." By the common law, the payment of the mort- 
gage money at the time fixed upon by the parties was in the nature 
of a forfeiture of the estate by the mortgagor, and authorized the 
mortgagee to enter immediately and take the emblements ; but in 
equity he held them, as he did the land, only as security for the mort- 

' Boston & N. Y. Air Line R.R. Co. v. Balcom, 6 Barb. 370 ; Sherman v. Wil- 

CofBn, 50 Conn. 150. lett, 42 N. Y. 146 ; Hamilton v. Austin, 

'•^ State V. Glenar, 18 Nev. 34 ; Morgan 36 Hun, 138 ; Maples v. Millon, 31 

V. Donovan, 58 Ala. 242. Conn. 598 ; King v. Wilcomb, 7 Barb. 

' Emerson v. European & N. A. R.R. 263, 267 ; Price v. Brayton, 19 Iowa, 

Co., 67 Me. 387 ; 24 Am. R. 39. 309; Adams v. Beadle, 47 Id. 439; 

* United States v. New Orleans R.R. Downard v. Groff, 40 Id. 597; Bryant 

Co., 12 Wall. 362. V. Pennell, 61 Me. 108 ; Montgomery v 

' Lane v. King, 8 Wend. 584 ; Shep- Merrill, 65 Cal. 432. 
ard V. Philbrick, 2 Den. 174 ; Aldrich v. « Coke, Litt. 55. 
Reynolds, i Barb. Ch. 613 ; Gillett v. 



§§ 161-162.J EXTENT OP THE LIEN". 109 

gage debt, and upon redemption he was bound to account for such 
emblements. Having the legal right, however, and the land and its 
products being a security to the mortgagee for his debt, a court of 
equity will not deprive him of his legal right to the emblements until 
the mortgage money and interest are fully paid.' 

Growing crops pass to the purchaser at the foreclosure sale in the 
absence of an express contrary agreement or waiver." 

§ 161. Use of emblements by mortgagor. — Before foreclosure 
the mortgagor may lawfully use the mortgaged property in the usual 
and customary way without incurring hability. If the mortgaged 
property consists of agricultural lands, he may gather his crops or 
take the fruit of the trees growing upon it, or he may use the land 
for the rearing of trees, which he may dig up and sell. It is not 
^aste for a mortgagor of agricultural lands to sell timber or to re- 
move or change fixtures, if done in good faith, in the usual course of 
good husbandry, and before foreclosure has been begun or before de- 
fault has occurred upon the mortgage. Nor is it waste for him to 
seU stone from open quarries or minerals from open mines, if done 
in the usual coui-se of such business, though the product removed may 
exceed the value of the remaining freehold.' After foreclosure is 
begun, the plaintiff may, if the security is in jeopardy, intercept, 
through the aid of a receiver, the rents or emblements, or both, upon 
the theory that the whole estate is pledged as security for .the debt, 
and that the creditor is immediately entitled to his money or the 
property pledged.' But in such a case a receiver is not entitled to 
recover for rents collected or emblements removed prior to the date 
of his appointment, his right being confined to subsequent rents and 
profits and to rents uncollected or emblements ungathered at the time 
of his appointment.^ The mortgagor may also be restrained by in- 
junction from removing fixtures, emblements, or the like." 

§ 162. Remedies of mortgagee. — If the mortgagee is restrained 
from foreclosing by injunction, at the instance of the owner of the 
equity of redemption, and the growing crops are in the meantime 
removed, he is entitled to their value as an element of damage if there 

' Aldrich v. Reynolds, i Barb. Ch, 613. ' Hamilton v. Austin, 36 Hun, 138, 

^ Beckman v. Sikes, 10 Pacif. Rep, 142. 
(Kans.) 592 ; Smith v. Hague, 25 Kans. * Hollenbeck v. Donnell, 94 N. Y. 347 ; 

246 ; Garanflo v. Cooley, 33 Kans. 137 ; Bank v. Arnold, 5 Paige, 40. 
5 Pacif. Rep. 766 ; Kerr v. Hill, 27 W. ' Hamilton v. Austin, 36 Hun, 138. 
Va. 576. "See infra, §§ 181 to 187. 



110 MOETGAGBS OF EEAL PEOPBRTT. [§§ 163-164. 

be a deficiency ; ' and while tlie mortgagor may, if he acts in good 
faith, cut timber upon the mortgaged premises, whenever he can do 
so without committing waste, and appropriate the timber thus cut to 
his own use, even though he be insolvent, he may be restrained by in- 
junction from doing so if it can be shown that the timber is being cut 
in a fraudulent and unconscientious attempt to strip the mortgaged 
premises of the timber thereon, with the intention of defrauding the 
mortgagee out of his security." And it is said that the mortgagee has 
a lien on timber fraudulently cut down and removed after the com- 
mencement of foreclosure.' 

§ 163. Growing crops and timber. — Although growing crops will 
ordinarily pass to a purchaser at a foreclosure sale, they will not so 
pass if they are expressly excepted, on the principle that the mort- 
gaged premises may be sold in separate parcels, and a purchaser can 
only claim what has been offered and bid upon." 

While timber, after it is cut, becomes personal property, a mort- 
gage on real estate for part of the purchase money, which expressly 
provided that the mortgagee should have a lien upon timber cut on 
the premises, has been held valid as against a judgment creditor of 
the mortgagee who claimed under a debt antecedent to the mort- 



§ 164. Nursery trees. — Emblements may partake of the charac- 
ter both of real and personal property ; as where the owner of land 
and another enter into the business of farming or of rearing young 
trees. In such a case, the plants, while affixed to the soil, are personal 
property as between the copartners, but a part of the realty as be- 
tween the owner and his subsequent mortgagee ; and it has been held, 
contrary, it is thought, to the general principle, that a mortgagee with 
notice, or a purchaser under the mortgage without notice, takes a lien 
upon or acquires an interest in the trees, subject to a settlement of 
the partnership affairs." 

Where a tenant has a right to crops he may mortgage them as per- 
sonal property.' 

' Aldrich v. Reynolds, i Barb. Ch. ' Wood v. Lester, 2g Barb. 145 ; Chiles 

613. V. Wallace, 83 Mo. 84. 

' Ensign v. Colburn, 11 Paige, 503 ; * King v. Wilcomb, 7 Barb. 263. But 

Emmons v. Hinderer, 24 N. J. Eq. 39. see this case criticised in Omboney v. 

' Higgins V. Chamberlain, 32 N. J. Eq. Jones, 19 N. Y. (5 Smith) 240. 

566 ; Mosher v. Vehue, 77 Me. 169. ' Smith v. Jencks, i Den. 580 ; s. c. I 

* Sherman v. Willett, 42 N. Y. 146. N. Y. (i Comst.) 90. 



§§ 165-167.] EXTENT OF THE LIEN. Ill 

Where a mortgagor planted nursery trees and mortgaged them as 
cBattels, and the mortgage on the land was foreclosed, it was held 
that the pm-chaser at the foreclosure sale acquired title to the trees.' 

§ 165. Rights of purchaser at foreclosure sale. — The mort- 
gagor's lessee is not entitled to crops growing on the premises as 
against a purchaser at a sale in foreclosure under the mortgage ; and 
the mortgagee becoming the purchaser, may maintain trespass against 
the lessee for taking and carrying away the crops.^ 

As between the mortgagor and a purchaser at the foreclosure sale 
under the mortgage, the manure belongs to the latter. The rules as 
between landlord and tenant do not apply." The manure of the 
cattle on the land is regarded as a fixture, and the same remedies ex- 
ist against removing it as would apply in case of the removal of a 
substantial part of the real estate.' 

WHAT AEB FIXTTIEES AS BETWEEN MOETGAGOE AND MOETGAGEE. 

§ 166. General rule. — In determining whether chattels affixed to 
land or to erections upon land, will pass under a mortgage of the 
realty, the same rules will apply which control when similar questions 
arise between grantor and grantee, and whatever wiU pass by a con- 
veyance will also be bound by a mortgage." As in the case of a 
grant, the greatest rigor is exercised in favor of considering the prop- 
erty as realty, and as against treating it as personalty, and the less 
stringent rules which prevail as between landlord and tenant do not 
apply." 

§ 167. Time of annexation. — It is immaterial as to whether the 
chattels are affixed to the land before or after the execution of the 
mortgage, and as a general rule they become bound by the mortgage 
whenever they become a part of the realty.' This rule is subject to 



' Adams v. Boadle, 47 Iowa, 439 ; 29 inson v. Preswick, 3 Edw. 246 ; Main v. 

Am. R. 487. Schwarzwaelder, 4 E. D. Smith, 273 ; 

' Lane v. King, 8 Wend. 584 ; 24 Am. Babcock v. Utter, 32 How. 439 ; s. c. i 

Dec. 105. Abb. App. Dec. 27 ; Union Bank v. Em- 

^Chasev.Wingate, 68Me. 204; 28 Am. erson, 15 Mass. 159 ; Clove v. Lambert, 

R. 36. 78 Ky. 224. 

*Vehue v. Mosher, 76 Me. 469; 31 ^Snedekerv.Warring,i2N.Y. (2Kern.) 

Alb. L. J. 103.' 170 ; 2 Kent's Com. 343 et seq.; Day v. 

^ Voorhees v. McGinnis, 48 N. Y. 278; Perkins, 2 Sand. Ch. 359 ; Climie v. 

Snedeker v. Warring, 12 N. Y. (2 Kern.) Wood, L. R. 3 Exch. 257 ; Maples v. 

170 ; Bishop v. Bishop, 11 N. Y. (i Kern.) Millon, 31 Conn. 598. 

123 ; Miller v. Plumb, 6 Cow. 665 ; Rob- ' Gardner v. Finley, 19 Barb. 317 ; 



112 MORTGAGES OP EBAL PBOPEETY. [§ 168. 

some exceptions, and a mortgage on real estate will not always bind 
chattels which do not belong to the mortgagor or which have pre- 
viously been mortgaged as chattels ; ' neither will it bind personal 
property which has been annexed subsequent to the mortgage, if equities 
in favor of third persons require that it shall continue to be personal." 

A house or other addition or improvement of a permanent char- 
acter erected by the owner of the equity of redemption without any 
agreement with the mortgagor, becomes paft of the realty and passes 
with it to a purchaser under the foreclosure of the mortgage.' So, 
as between mortgagor and mortgagee, a frame building resting on 
wooden blocks laid on the ground, designed as an office in connection 
with a mill, but detached therefrom and intended by the mortgagor 
to be removed, is subject to the lien of the mortgage, although erected 
after the mortgage was executed, and its removal will be restrained 
by injunction.' The same rule was held to apply to a frame building 
erected on the mortgaged premises by the mortgagor's husband. ° 

One who buys mortgaged premises without actual knowledge of 
the mortgage, the mortgage being recorded, and puts betterments 
thereon, subjects them to the lien of the mortgage, and can have no 
compensation for them except from the surplus after the payment 
of the mortgage." 

§ 168. Tests. — There are several tests in the form of general prin- 
ciples that will aid in the determination of questions as to what are 
fixtures : 

1. The rule is quite uniform that to give to articles, personal in 
their nature, the character of real estate, the annexation must be of a 
permanent character. There are exceptions to this rule in those arti- 
cles which are not themselves annexed, but are deemed to be of the 
freehold from their use and character, such as millstones, fences, 
statuary, and the like. 



Snedeker v. Warring, 12 N. Y. (2 Kern.) ■ Sheldon v. Edwards, 35 N. Y. 279 ; 

170; Ricev. Dewey, 54 Barb. 455 ; Cor- Ford v. Cobb, 20 N. Y. 344. 

liss V. Van Sagin, 29 Me. 115 ; Winslow '' Tifft v. Horton, 53 N. Y. 377. 

V. Merchants' Ins. Co., 4 Mete. 306; ' Matzon v. Griffin, 78 111. 477 ; Wood 

Sullivan v. Toole, 26 Hun, 203 ; Butler v. Whelen, 93 111. 153 ; Baird v. Jackson, 

V. Page, 48 Mass. (7 Mete.) 40 ; Curry v. 98 111. 78. 

Schmidt, 54 Mo. 515 ; Preston v. Briggs, ''State Savings Bank v. Kicheval, 65 

16 Vt. 124; Powers v. Dennison, 30 Vt. Mo. 682 ; 27 Am. R. 310. 

752 ; Pierce v. Goddard, 39 Mass. (22 ' Wright v. Gray, 73 Me. 297. 

Pick.) 359 ; Phinney v. Day, 76 Me. ' Wharton v. Moore, 84 N. C. 479 ; 37 

83. Am. R. 627. 



§§ 169-170.J EXTENT OF THE LIEN. 113 

2. A second test, but not so certain in its character, is that of 
adaptability to the use of the freehold. 

3. A third test is that of- the intention of the parties at the time of 
making the annexation.' 

These are tests, knd valuable ones, but they cannot always be relied 
upon, and it would be difficult to frame any statement of principle, 
however elaborate, which would reconcile all of the cases. Each case 
stands upon its own special facts, and the indefiniteness of the law 
allows an ingenious judge to find reasons for administering in almost 
any case what the circumstances which surround it lead him to believe 
to be substantial justice. 

§ 169. The permanent character of the annexation will always 
be an important element in determining whether the chattel becomes 
a part of the realty or not, and it will not be presumed to be the in- 
tention of a party to remove an article from a building when such 
removal could not be effected without injury to it. But this in itself 
will not be conclusive. 

§ 170. Intention in making annexation. — In many cases the in- 
tention of the annexation is held to be more important than the char- 
acter of it. 

As an illustration of this principle, it may be mentioned that the 
keys of a house, which are not annexed to it at all, or the doors and 
blinds, which are affixed to it in such a way as to be capable of easy 
removal, are, beyond question, parts of the realty, the purposes of 
their use and the evident intention of the person who affixed them 
being controlling considerations. So a sun-dial and a monument, 
which were not affixed to land except as they were held in their 
places by their own weight and the weight of the pedestals on which 
they stood, were held to pass under a mortgage of the real estate." 

The question of intention enters into and makes an element in each 
case, and the circumstances are to be taken into account to show 
whether the erections were made for the permanent improvement of 
the freehold or the temporary purposes of trade. If, for example, 
machinery were put into a building for use with a water-power exist- 



' Per Hunt, C. , in Voorhees v. Mc- and cases cited ; McRea v. Cent. Nat. 
Ginnis, 48 N. V. 278, 282, and cases Bank of Troy, 66 N. Y. 489. 
cited ; Potter v. Cromwell, 40 N. Y. 287, ^ Snedeker v. Warring, 12 N. Y. (2 

Kern.) 170. 

8 



114 MOETGAGES OF BEAL PEOPEETT. [§ 171. 

ing upon the land/ or if it were attached at the time of the erection 
of the building,' it would form a part of the realty, and would pass 
with a mortgage of the land ; but if the same machinery were put 
into a barn, there. to be moved by a horse traversing in a circle around 
a beam, the presumption would be that the intention was to remove 
it, and that it retained its character of personalty/ 

§ 171. Examples of what does not pass with the land. — In 

Cresson v. Stout (IT Johns. 116), spinning and carding machines in a 
mill, fastened to the floor by cleats, nails, and stout wooden pins, were 
held to be personal property. So in Yanderpoel v. Yam Allen (10 Barb. 
157), machinery in a cotton-mill was secured to the building by cleats 
tacked to the floor to keep them level, and they were held to be fix- 
tures. So in Mwrdook v. Gifford (18 IT. Y. 28),' looms in a woolen 
factory, fastened to the floor, by screws to keep them steady, were 
adjudged to retain their character of personalty. 

So, also, machines resting upon the floor of a building by means of 
iron legs fastened to the floor by screws only for the purpose of 
steadying them when in use, and which, although of great weight, 
connected with shafting, and adapted for use and necessary in the 
business carried on in the building, can be removed without injury 
to the building, so that they may be used elsewhere, are not covered 
by the mortgage on the land.* 

A Baltimore heater, and an iron frame in the nature of a weather- 
vane fastened to the roof, both remain personal property notwith- 
standing their use with the land.' So, also, do gas flxtures which 
are simply screwed on to the gas-pipes of a building, and can be de- 
tached by unscrewing them ; and mirrors which are not set into the 
walls, but are put up after the completion of the building, being sup- 
ported by hooks or other supports driven in or attached to the wall, 
and which can readily be detached from these supports without in- 
terfering with or injuring the walls, form no part of the realty, and 
do not pass under a mortgage of the premises." So, a shingle ma- 
ehine standing on a box the size of the machine, made of four-inch 

' Breese v. Bange, 2 E. D. Smith, 474. len v. Mooney, 130 Mass. 155 ; Winslow 

' Laflin v. Griffiths, 35 Barb. 58. v. Merchant's Ins. Co., 4 Met. 306. 

^ Farrar v. Chauffetete, 5 Den. 527, ' Harmony Building Association v. 

531. Berger, 99 Pa. St. 320. 

* Hubbell V. East Cambridge Savings " McKeage v. Hanover Fire Ins. Co., 

Bank, 132 Mass. 447; McConnell v. 8r N. Y. 38; 37 Am. R. 471, affi'g 16 

Blood, 123 Mass. 47 ; 25 Am. R. 47 ; Al- Hun, 239. 



§ 173.] EXTENT OF THE LIEN. 115 

plank about sixteen inches high, not framed, nor fastened to the floor, 
except that on one side there was a strip, so that it could not slip ; and 
a planing-machine, not fastened to anything, but held in its place by 
its own weight, have been held not to pass on the foreclosure of a 
mortgage on the land.' And a portable iron furnace for heating a 
church, standing on the cellar floor and held in position by its own 
weight, and capable of being detached with its pipes without injury 
to the building, is not subject to a mortgage on the building.^ 

An engine and boiler, steam-gauge, water-tank, steam-pump, and 
shafting, designed permanently to increase the value of a building for 
occupation as a manufactory, become subject to the lien of a mortgage 
on the land ; but this is not so as to machines not essential or espe- 
cially adapted to the use of the building as a manufactory." 

Machinery in a bedstead manufactory and grist-mill, consisting of 
a planing-machine, a machine for cutting screws, a turning-lathe, a 
circular saw and frame, and a boring-machine, which, though spiked 
to the floor, studs, and parts of the building, could be removed, and 
were in fact removed without difficulty, or injury to the building or 
machinery and used in another building, were held to be personal 
property as between the mortgagor and mortgagee of the land." 

§ 172. Examples of what passes with the land. — ^As be- 
tween mortgagor and mortgagee platform scales fastened to sills 
laid upon a brick wall set in the ground for weighing stock and grain 
and intended for permanent use, are part of the realty.^ So are 
boilers, engines, shafts, and steam-pipe used for heating purposes, and 
attached to the freehold for its permanent improvement." The same 
principle includes engines, boilers, etc., used in a flour-mill, and per- 
manently fastened to the building which has its foundation in the 
ground, and they pass under the foreclosure of a mortgage which was 
a lien on the property previous to their annexation to it.' And, in 
general, when machinery is so attached as to show that it was designed 
for the permanent benefit of the freehold, it will pass with the land.' 



' Wells V. Maples, 15 Hun, 90. ' Arnold v. Crowder, 81 111. 56 ; 25 

' Rahway Sav. Inst. v. Irving St. Bap. Am. R. 260. 

Church, 36 N. J. Eq. 61. * Quinby v. Manhattan Cloth & Paper 

» McConnell v. Blood, 123 Mass. 47 ; Co., 24 N. J. Eq. 260. 

25 Am. R. 12 ; Winslow v. Merchant's ' Sands v. Pfeiffer, 10 Cal. 258. 

Ins. Co., 45 Mass. (4 Mete.) 306. 'Bremen v. Whitaker, 15 Ohio St. 

* Fullam V. Steams, 30 Vt. 443. 446. 



116 MOETGAGES OF REAL PKOPERTT. [§§ 173-174. 

A kettle in a fulling-mill used foi* dyeing cloth, being set in brick- 
work, passed to the mortgagee of the mill.' 

An iron table weighing thirty-three tons, resting on brick founda- 
tions, and placed in a factory for the manufacture of plate glass, and 
adapted only for use in such factory, has been held to be bound by a 
mortgage of the real estate though it could be removed without injury 
to the realty.' 

Where a mortgagor of a mill, after making the mortgage, put into 
the miU a shingle-machine and apparatus attached to it, it was held to 
become a part of the freehold.' 

Mirrors set into the walls of a house at the time of its erection, 
and not merely hung upon hooks, are part of the land.' And hop- 
poles used in cultivating a farm are subject to the mortgage upon it.' 

EULE AS TO FIXTDEES BETWEEN LESSOE AlTD LESSEE. 

§ 173. As between lessor and lessee, the rule as to what are 
fixtures is more favorable to the tenant than is the rule between 
grantor and grantee, or mortgagor and mortgagee. And where a 
tenant of a mortgagor afiSxes machinery or other fixtures to the mort- 
gaged property for a temporary purpose incident to his tenancy, he 
may remove them, though, as between mortgagor and mortgagee, 
the mortgage lien would attach to them.' But when the lessee makes 
a mortgage of his leasehold interest, his rights as between him and 
his mortgagee must be tested by the principles which obtain between 
mortgagors and mortgagees of real estate.' 

§ 174. Structures erected by a lessee on the leased property, in 
such a way as to be capable of removal, do not come within a sub- 
sequent mortgage of the premises, although the lessee neglects to 
remove them during the term and accepts a renewal of the lease 
from the mortgagor.' 

Where a tenant puts machinery upon the demised premises which 
were incumbered by a mortgage, and afterward purchased the prop- 



' Union Bank V.Emerson, 15 Mass.isg. "Kelly v. Austin, 46 111. 156; Globe 

'Smith Paper Co. v. Servin, 130 Mass. Marble Mills v. Quinn, 76 N. Y. 23. 

51. 'Day V. Perkins, 2 Sand. Ch. 359; 

'Corlies v. McLagin, 29 Me. 115. Shuart v. Taylor, 7 How. 251 ; Merritt 

* Ward V. Kilpatrick, 85 N. Y. 413 ; v. Judd, 14 Cal. 59 ; Walker v. Sherman, 

compare McKeage v. Hanover Fire 20 Wend. 636. 

Ins. Co , 81 N. Y. 38 ; 37 Am. R. 471. 'Kerr v. Kingsbury, 39 Mich. 150 ; 33 

'Sullivan v. Toole, 26 Hun, 203. Am. R. 362. 



§ 174. J EXTENT OF THE LIEN. 117 

erty subject to such mortgage, and the mortgage was subsequently 
foreclosed, it was held that the right to remove the machinery was 
not extinguished by the merger of the lease in the fee, although the 
machinery was so annexed that, as between vendor and vendee, it 
would be part of the realty. The estate which the tenant had was 
merged in the estate in fee. But the ownership of the chattels, which 
was vested in him before the conveyance of the land, was separate 
from and independent of the lease, and was not derived from the 
lessor. The chattels were not a part of the inheritance. This own- 
ership was not merged, because it was not carved out of the fee, and 
the doctrine of merger did not apply. The machinery did not be- 
come a part of the fee in the absence of any evidence of intention 
on the part of the owner that the character of the property should 
be changed.' 

Trade fixtures set up by partners on realty owned in undivided 
interests by the individuals who composed the partnership, the firm 
having only the use of it, though fastened by screws and bolts, were 
held not to be covered by a mortgage on the land as against a cred- 
itor of the firm claiming under a bill of sale for a partnership debt. 
It was said by Cooley, J. : " JSTo doubt had the real estate been part- 
nership property, fixtures attached by the partners might have become 
part of it."" 

A mortgagee cannot hold as a fixture an embossing-press owned 
and put into a building by a lessee of the mortgagor.' In this case 
the press weighed about 5,000 pounds, and had no other substantial 
attachment to the realty than its weight.* 

"Where a tenant adds fixtures to mortgaged real estate, and mort- 
gages them as chattels, and afterward surrenders the term, this does 
not effect such a merger as will defeat the claims of the owner of the 
chattel mortgage.' 

A tenant at will of the mortgagor who adds fixtures to the mort- 
gaged property acquires no right to remove them that would not 
belong to the mortgagor, and the rules as to fixtures which prevail 
between mortgagor and mortgagee have application." 

' Globe Marble Mills Co. v. Quinn, 76 ' Pope v. Jackson, 65 Me. 162. 

N. Y. 23. See contra, Jones v. Detroit * Id. 

Car Co., 38 Mich. 92 ; 31 Am. R. 314 ; 'London & Westminster Loan & Dis- 

Cullinick v. Swindell, 3 L. R. Eq. 249 ; count Co. v. Drake, 6 Com. B. N. S. 

Frankland v. Moulton, 5 Wise. 16 ; Pres- 798. 

ton V. Briggs, 16 Vt. 124. ' Clary v. Owen, 15 Gray (Mass.) 522 ; 

"Robertson v. Corsett, 39 Mich. 777. Hunt v. Bay State Co., 97 Mass. 279. 



118 MORTGAGES OF EEAL PEOPEKTY. [§§ 175-177. 

CONFLICTING CLAIMS TO CHATTELS AFFIXED TO MOETGAGED EEALTT. 

§ 175. As against chattel mortgage. — If, after the chattels 
are affixed to the land, a mortgage of the real estate is executed, and 
subsequently the chattels are mortgaged as personal property, the 
question as between the mortgagee of the land and the mortgagee of 
the chattels will be as to whether, when the chattel mortgage was 
executed, the property covered by it was real or personal estate.' 

But if the chattel mortgage were executed before the mortgage on 
the land, the mortgagee of the land having notice of the prior inciun- 
brance, the act of the parties in treating the property as personal 
would, as between them, make it so." So a mortgage of growing 
trees would create a valid lien upon them, and upon forfeiture of the 
condition of the mortgage, they would, in law, be severed from the 
land." So, too, where a mortgage of real estate was executed subse- 
quently to the making of an agreement by which a third person be- 
came a partner with the mortgagor in the business of nurserymen, it 
was held that such third person might enforce the partnership right to 
nurse the trees and shrubs planted until fit for market, as against a 
purchaser with notice under the foreclosure of the mortgage.* And 
the priority of the lien of a chattel mortgage upon a frame building 
subsequently removed by the mortgagor to and upon other lands, is 
not defeated or affected by a subsequent mortgage upon such other 
lands given by the same mortgagor to a mortgagee having full 
knowledge of the prior chattel mortgage.* 

§ 1 76. If chattels affixed to land become bound by a mortgage 
of the real estate, they cannot be removed except by consent of the 
mortgagee, who may restrain their removal or destruction by in- 
junction, even as against the owner of the equity of redemption, if 
such removal will render his security inadequate or precarious.' The 
mortgagee may also maintain an action against a wrong-doer who re- 
moves such fixtures, and that either before or after foreclosure, and 
whether he is in possession or not.' 

§ 177. A curious question was presented in KelseyY. Lyon (97 

' Vanderpoelv.Van Allen,ioBarb.i57. ^ King v. Wilcomb, 7 Barb. 263. But 

' GrifEn v. Allen, not reported, but see Thomas v. Vinton, I2i Mass. 139. 

cited in Clinton's Digest ; Voorhees v 'Simons v. Pierce, 16 Ohio St. 215. 

McGinnis, 46 Barb. 242. ' Robinson v. Preswick, 3 Edw. 246. 

* Bank of Lansingburgh v. Crary, i ' Laflin v. Griffiths, 35 Barb. 58 ; Van 

Barb. 542. Pelt v. McGraw, 4 N. Y. (4 Comst.) no. 



§ 178.] EXTENT OF THE LIEU". 119 

N. T. 629), wliicli was an action for the conversion of certain machin- 
ery in a planing-mill. Plaintiff claimed title under a chattel mort- 
gage from one Matthias. Matthias had a mortgage upon the premises 
upon which the planing-mill was located. The mortgagors executed 
to him a bill of sale of the personal property in the mill, not including 
the machinery in question, which they considered as part of the 
realty, and put him in possession of the real estate. He subsequently 
foreclosed his mortgage, and bid in the property. Thereafter he exe- 
cuted the chattel mortgage. The real estate was afterward sold upon 
foreclosure of a prior mortgage held by defendant, who became the 
■purchaser, and eutered into possession. Finch, J., said : " The plain- 
tiff's title to the machinery was dprived from the chattel mortgage of 
Matthias, and is dependent upon it. If that machinery was so an- 
nexed to the realty as to become parcel of it, Matthias acquired title 
by the foreclosure of his real estate mortgage, but subject, neverthe- 
less, to the prior mortgage, the foreclosure of which cut off and 
destroyed his .lien and resulting title. The appellant avoids this diffi- 
culty only to encounter another. He argues that the machinery was 
personal property, but if so, Matthias got no title by foreclosure of 
his real estate mortgage and never acquired one in any other way." 

§ 178. The intention of the owner in affixing chattels to the 
freehold is frequently held to be controlling. Thus, where a com- 
bined boiler and engine of six-horse power, standing on wheels six 
inches in diameter, the wheels resting on the ground and not in any 
way annexed to the building, was placed in a tub manufactory, and a 
prior mortgagee of the land claimed a Ken upon the boiler and en- 
gine, and a subsequent holder of a chattel mortgage also claimed such 
lien, it was held to be erroneous to direct a jury to find that the chat- 
tel mortgagee was entitled to them. It was said by the General Term 
of the Fifth Department that the court should have submitted the 
question to the jury as to whether it was the intention of the owner 
of the property to permanently attach and use the boiler and engine 
with the premises, and that, if he did sOj they became fixtures, and 
subject to the lien of the mortgage upon the real estate. The method 
of attaching them, whether by their mere weight or by screws or 
nails or masonry, was to be regarded as material only as evidence 
bearing on the question of intention.' 

1 Hart V. Sheldon, 34 Hun, 38. Citing v. McGinnis, 48 N. Y. 278 ; Potter v. 
TifEt V. Horton, 53 N. Y. 377 ; Voorhees Cromwell, 40 N. Y. 287 ; Winslow v. 



120 MORTGAGES OF EEAL PEOPEETY. [§ 179. 

Where a chattel mortgage for the purchase money of a steam boiler 
was takeu, and the boiler was afterward attached to the freehold, it 
was held that the chattel mortgage itself could be resorted to as evi- 
dence of the intention of the parties to have it remain personal prop- 
erty.' 

Boilers and engines, not attached to the realty, although in a shed 
which would have to be removed in order to take away the former, 
and machines fastened to the floor by cleats, screws, and nails, and 
connected by the belting to the shafting, are personal property as be- 
tween a mortgagee of the land and a mortgagee of the machinery. 
" The later decisions establish that machines may remain chattels for 
all purposes, even though physically attached to the freehold by the 
owner, if the mode of attachment indicates that it is merely to steady 
them for their more convenient use, and not to make them an adjunct 
of the building or soil." ' 

§ 179. Character of annexation. — The distinction between cases 
where the chattels may continue to be personal property after being 
affixed to the land and where they may not, seems frequently to rest 
upon their essential character, and whether they can be removed 
without serious damage to the freehold, or substantially destroying 
their own quality and value.* If they can be so removed, they will 
continue personal if the rights of third persons require, even though 
as between the mortgagor and mortgagee they would pass with the 
land ; but if they cannot be removed without substantial injury to the 
real estate or to themselves, they cease to be personal, and become 
real estate, hable to the burdens which rest upon the land and subject 
to be transferred vnth it. If the rights of third persons are invaded 
by this change of the character of the property, they must seek their 
remedy against those who wrongfully converted the personal into 
real property.* 

Merchant's Ins. Co., 4 Met. 306 ; Sands ^ Carpenter v. Walker, 140 Mass. 416 ; 

V. Pfeiffer, 10 Cal. 258 ; Hill v. Went- 33 Alb. L. J. 318 ; McConnell v. Blood, 

worth, 28 Vt. 428 ; Harris v. Haynes, 34 123 Mass. 47 ; Hubbell v. East Cam- 

Vt. 220 ; Sweetzer v. Jones, 35 Vt. 317 ; bridge Sav. Bank, 132 Id. 447 ; Maguire 

FuUam v. Stearns, 30 Vt. 443 ; Voorhis v. Park, i N. E. Rep. 750. 

V. Freeman, 2 Watts & Sergt. (Pa.) ^ Ford v. Cobb, 20 N. Y. 344 ; Tlfft 

116 ; Pyle v. Pennock, Id. 390. v. Horton, 53 N. Y. 377 ; 13 Am. R. 537 ; 

1 Kinsey V. Bailey, 9 Hun, 452 ; Eaves Sisson v. Hibbard, 75 N. Y. 542, affi'g 

V. Estes, 10 Kan. 314 ; Tibbetts v. 10 Hun, 420. 

Moore, 23 Cal. 208 ; Davenport v. * Voorhees v. McGinnis, 48 N. Y. 

Shauts, 43 Vt. 546 ; Sisson v. Hibbard, 278 ; Fryatt v. The Sullivan Co., 5 Hill, 

75 N. Y. 542, affi'g 10 Hun, 420. 116 ; Pierce v. Goddard, 22 Pick. 559. 



§ 180. J EXTENT OE THE LIEN. 121 

§ 180. Examples. — Where a chattel mortgage was executed on 
fixtures prepared to be attached to a building, as essential parts of it, 
and which were thereafter so attached, the lien of the chattel mort- 
gage was held to be subordinate to a mortgage afterward given on the 
land.' But where an engine was buUt for a mill, and before it left 
the owner's shop a mortgage was taken on it with a stipulation that 
it might be removed at any time, it was held that the engine con- 
tinued to be personal property as against a previous mortgage of the 
land.'' In a similar case where the mortgage on the real estate was 
executed after the machinery was affixed to the real estate, the 
mortgagee of the land having no notice of the chattel mortgage, it 
was held that the machinery was bound by the mortgage of the land.* 
And where a boiler was sold under an agreement that the title to it 
should remain in the vendor until payment, and it was then placed 
by the vendee in a machine-shop and so annexed to the realty as to 
become part of it, it was held that the lien of a subsequent mortgage 
of the real estate attached to it.* 

Machinery so attached to the mortgaged premises as to become part 
of it, becomes subject to a mortgage thereon even against a partner 
of the mortgagor who paid half of the cost under an agreement with 
the mortgagee that it should be treated as personalty.' 

If one erect a building for his own use upon the land of another 
by virtue of a parol license from the owner with privilege of re- 
moval, the lien of a subsequent mortgagee of the land wiU attach to 
it.' And the Hen of a prior mortgagee will also attach to it.' 

In a case where machinery was attached to a building in such a 
way as to show that it was designed to be permanent, and such an- 
nexation was made by the owner with the consent of the owner of a 
chattel mortgage thereon, such chattel mortgage, though duly filed 
and recorded, was held to be inoperative as against a subsequent hona 
fide mortgagee of the real estate.* 



1 Pierce v. George, io8 Mass. 78 ; ii ■* Southbridge Savings Bank v. Exeter 

Am. R. 310 ; Voorhees v. McGinnis, 48 Machine Works, 127 Mass. 542 ; Daven- 

N. Y. 278 ; Frankland v. Moulton, 5 Wis. port v. Shauts, 43 Vt. 546. But see 

I ; Trull V. Fuller, 28 Me. 545. Sowden v. Craig, 26 Iowa, 156. 

' Eaves v. Estes, roKans. 314 ; 15 Am. ' Thomas v. Vinton, 121 Mass. 139. 
R. 345 ; Tifft V. Horton, 53 N. Y. 377 ; ^ Powers v. Dennison, 30 Vt. 752. 
13 Am. R. 537; Crippen v. Morrison, 13 'Preston v. Briggs, 16 Vt. 124. 
Mich. 23. ° Bremen v. Whitaker, 15 Ohio St. 

^ Bremen v. Whitaker, 15 Ohio St. 446. 
446 ; Pierce v. George, 108 Mass. 78. 



122 MOKTGAGES OF REAL PEOPEETT. [§ 181. 

Where a person, being in possession of machinery belonging to 
another, affixed it to and used it in connection with his saw-mill, 
which had previously been mortgaged, in a way so that it was capable 
of being removed without material injury to the building, and the 
owner of the machinery having no actual knowledge of the mortgage, 
and not consenting to the annexation any further than his assent 
could be inferred from the nature of the property and the use for 
which it was designed, it was held that the hen of the mortgage on 
the land did not extend to the machinery.' 

Where the owner of a sash and blind factory purchased and placed 
in it a moulding-machine and a planiug-machine to be used therein, 
which rested on the main floor of the building, one of which was 
bolted to the floor for greater flrmness in use, and the other of which 
was of sufficient weight to be steady without fastenings, and executed 
a mortgage on the real estate and afterward executed a chattel mort- 
gage upon the machines, it was held that the machines were not sub- 
ject to the mortgage of the real estate, but passed under the chattel 
mortgage." 

INJUNCTION TO EESTEAIN WASTE. 

§ 181. When injunction allowed. — The owner of the equity of 
redemption is entitled to the possession and enjoyment of the mort- 
gaged property, even after the condition is said to be forfeited at law, 
but good faith will require him not to use the estate in such a way 
as to injure the security of the mortgagee. Where the security is 
ample he will ordinarily be allowed to enjoy the property in his own 
way,' but if it be scanty or doubtful, an injunction may be obtained 
by the mortgagee to restrain him from committing waste.' And 
even where the right to cut timber is specially reserved to the mort- 
gagor by the terms of the mortgage, he wiU be restrained if his con- 
duct shows that he is exercising such right in bad faith.' 



' Cochran v. Flint, 57 N. H. 514. v. Keeney Settlement Cheese Associa- 

" Blancke v. Rogers, 26 N. J. Eq. 563 ; tion, 59 N. Y. 242 ; Dorr v. Dudderar, 

see Wells v. Maples, 15 Hun, 90. 88 111. 107 ; Nelson v. Pinegar, 30 111. 

'Story's Eq. Jur. §915; King v. 473; Vanderslice v. Knapp, aoKans. 647; 

Smith, 2 Hare, 239 ; Ingell v. Fay, 112 Vandemark v. Schoonmaker, 9 Hun, 16. 

Mass. 451. ^ Ensign v. Colburn, 11 Paige, 503 ; 

* Brady v. Waldron, 2 Johns. Ch. 148 ; Emmons v. Hinderer, 24 N. J. Eq. 39 ; 

Selden v. Mann, 2 N. Y. Leg. Obs. 328 ; Ingell v. Fay, 112 Mass. 451 ; Penn. 

Ensign v. Colburn, 11 Paige, 503 ; Rob- Mut. Life Ins. Co. v. Semple, 38 N. J. 

inson v. Preswick, 3 Edw. 246 ; Brown Eq. 314. 



§§ 182-183.] WASTE. 123 

§ 182. Provision of the Code. — It is provided by the Code of 
Civil Procedure in the title affecting actions relating to real property, 
that " if, during the pendency of an action specified in this title, the 
defendant commits waste upon or does any other damage to the prop- 
erty in controversy, the court or a judge thereof may, upon the ap- 
phcation of the plaintiff, and due proof of the facts by affidavit, grant, 
without notice or security, an order, restraining him from the commis- 
sion of any further waste upon or damage to the property. Diso- 
bedience to such an order may be punished as a contempt of the 
court. This section does not affect the plaintiff's right to a per- 
manent or a temporary injunction in such an action." ' 

§ 183. Who may apply for injunction. — ^Where a mortgagee is 
in possession, he may be stayed by injunction from committing any 
act which would injure the estate of the mortgagor.^ So, too, where 
a mortgage is a Ken on two parcels of land, or where a person not in 
possession is a surety for the mortgage debt, an injunction may be 
procured by any person interested in the preservation of the security 
afforded by the estate primarily liable for the debt, which will restrain 
the person in possession of that estate from diminishing its value.^ 
This latter proposition may, perhaps, be received with some caution, 
for Chancellor Kent, in Brumley v. Fcmning (1 Johns. Ch. 501), 
stated it to be the rule that a mortgagor who has sold his equity of 
redemption without taking any indemnity against his bond, cannot 
have an injunction against his vendee to stay waste on the ground 
that he will be answerable for what the land may fail to satisfy of the 
mortgage debt. 

The committing of waste may be restrained at the suit of any per- 
son having an interest to protect, including a surety for the mortgage 
debt, or one whose property is secondarily liable for its payment.* 

After a sale pursuant to a judgment of foreclosure, but before the 
delivery of the deed thereunder, the court may, upon the application 
of the purchaser, restrain the mortgagor who remains in possession from 
removing machinery claimed by the purchaser to constitute a part of 
the realty. But the court should not in granting such injunction in- 
sert phrases in the order which might be construed to impose a per- 
petual restraint upon the mortgagor from asserting a right to the 



' Code of Civ. Pro. § i68i. = Johnson v. White, ii Barb. 194. 

^ Brady v. Waldron, z Johns. Ch. ■'Johnson v. White, 11 Barb. 194; 
148. Knarr v. Conaway, 42 Ind. 260. 



124 mOETGAGES OF EEAL PROPERTY. [§§ 184^186. 

possession and ownership of such machinery. The order should be 
without prejudice to the right of either party to bring an action to 
determine the question whether the machinery did or did not pass by 
the referee's deed.' 

§ 184. Inadequacy of security. — The mortgagee of land on which 
a house is standing is not entitled to an injunction against the mort- 
gagor or his assigns from removing the house from the lot, except 
upon proof that the lot without the house would be inadequate for 
the mortgage debt." 

§ 185. Insolvency of mortgagor. — The right to restrain the im- 
pairing of the security may exist though the mortgagor be solvent, 
since the creditor bargained for both the obligation of the debtor and 
the security of the land," but the insolvency of the mortgagor must be 
established where the use of the property which is sought to be 
enjoined is one which is usual and customary, and only becomes im- 
proper because of the danger caused thereby to the rights of the 
mortgagee.* 

§ 186. Limitations of injunction. — The remedy by injunction is 
only intended to restrain the committing of future waste. If prop- 
erty has wrongfully been detached from the freehold, and has there- 
by been converted from real to personal property, it will be relieved 
from the lien of the mortgage,' and, whatever may be the remedy of 
the mortgagee for the wrongful severance, a court of equity will not 
enjoin against its removal at the instance of the mortgagee. The 
mortgagee had no right to its custody even while it was annexed to 
the land, and no good reason could be given for keeping it on the 
real estate after it had been separated from it, except that such a course 
might perhaps be a convenience to the mortgagee when he came to 
enforce his judgment for deficiency." 

Neither will the mortgagor be compelled to rebuild or repair build- 
ings on the mortgaged premises which, without his fault, as by the 
action of fire or of storms, have been destroyed or become ruinous. 



'Mutual Life Ins. Co. v. Bigler, 79 worth, 33 Wis. 358; Triplett v. Parmlee, 

N. Y. 568, modifying s. c. sub nom. 16 Neb. 649. 

Mutual Life Ins. Co. v. Nat. Bank of * Robinson v. Russell, 24 Cal. 467. 

Newburgh, 18 Hun, 371. ' Wilson v. Maltby, 59 N. Y. 126. 

''Buckout V. Swift, 27 Cal. 434; Van "Johnson v. White, 11 Barb. 194; 

Wyck V. AUiger, 6 Barb. 507, 511 ; Hill Spear v. Cutter, 5 Id. 486; Watson v. 

V. Gwin, 51 Cal. 47. Hunter, 5 Johns. Ch. i6g ; Selden v. 

^ Eden on Inj. 119 ; Fairbank v. Cud- Mann, 2 N. Y. Leg. Obs. 328. 



§§ 187-188. J WASTE. 125 

It is tlie duty of the mortgagee, if he wishes to provide against such 
contingencies, to do so in his contract or by insurance." 

§ 187. General principle. — The jurisdiction of courts of equity to 
interfere by way of injunction, in cases of waste, may be referred to 
the broadest principles of social justice. It is exerted where the 
remedy at law is imperfect, or is wholly denied ; where the nature of 
the injury is such that a preventive remedy is indispensable, and it 
should be permanent ; where matters of discovery and account are 
incidental to the proper relief ; and where equitable rights and equit- 
able injuries call for redress, to prevent a malicious, wanton, and 
capricious abuse of their legal rights and authorities by persons having 
but temporary and limited interests in the subject matter.' 

ACTION FOE DAMAGES CAUSED BY WASTE. 

§ 188. Remedy of mortgagee against persons who have com- 
mitted waste. — Where waste is committed by the mortgagor, or by 
his grantee, or by any other person on the mortgaged premises, by 
removal of fixtures upon which the mortgage has attached as a Hen, 
or otherwise, and the value of the security is reduced so that the 
mortgagee will not be able to obtain complete satisfaction for his 
debt ; and the person committing such waste having knowledge of 
the existence of the mortgage, and that the value of the security will 
be injured by his wrongful acts, and the waste being committed either 
for a fraudulent purpose to cheat the mortgagee, or for the purpose 
of making a gain at the expense and to the injury of the mortgagee ; 
in such case the mortgagee may have an action for damages against 
the person committing such waste, in the nature of an action on the 
case at common law.^ . 

Such an action is not based upon the assumption that the plaintiff's 
land has been injured, but that his mortgage as a security has been 
impaired. His damages, therefore, would be hmited to the amount 
of injury to the mortgage, however great the injury to the land 



' Campbell V. Macomb, 4 Johns. Ch. 534. Van Pelt v. McGraw, 4 N. Y. (4 Comst.) 

' Story's Eq. Jur. § gig. no ; Wilson v. Maltby, 5g N. Y. 126 ; 

'Yates V. Joyce, 11 Johns. 136; Lane Allison v. McCune, 15 Ohio St. 726; 45 

V. Hitchcock 14 Id. 213 ; Gardner v. Am. Dec. 605 ; Smith v. Rice, 56 Ala. 

Heartt, 3 Den. 232 ; Southworth v. Van 417 ; Hutchins v. King, i Wall. 53 ; At- 

Pelt, 3 Barb. 347 ; Laflin v. Griffiths, 35 kinson & Hewett, 63 Wis. 3g6 ; James v. 

Id. 58 ; O'Dougherty v. Felt, 65 Id. 221 ; Worchester, 141 Mass. 361. 



126 MOETOAGES OF BEAL PEOPEETY. [§ 189-190. 

might be, and it will therefore be of no consequence whether the 
injury occurred before or after forfeiture.' 

§ 189. Intent to injure security. — This action is not maintain- 
able upon the ground of mere negligence, but it must be shown that 
the defendant intended to injure the plaintiffs security.^ It is not 
necessary that the primary object of the defendant was to injure 
the plaintiff ; if he knew that such would be the consequence of his 
acts, and if he still did them for his own unlawful gain, he will be 
liable.' 

A mortgagee cannot recover against a purchaser of a house on 
mortgaged land who removes it, where the latter had no knowledge 
of the insolvency of the mortgagor, and there is no proof that the 
purchaser acted fraudulently." Neither can a mortgagee enforce his 
Ken against buildings which have been removed from the mortgaged 
land, or have become parts of another freehold.' 

In analogy to the right of action which the mortgagee has against 
a person who wilfully injures the security, he might probably also 
have a right of action against a sheriff who should intentionally omit 
to satisfy a judgment out of the chattels of the mortgagor, in conse- 
quence of which the judgment became a charge upon the real estate 
prior to the mortgage ; but no action of this kind would lie against a 
sheriff for mere negligence, unless the act were done fraudulently and 
with intent to diminish the security of the mortgage creditor.' 

§ 190. Measure of damages. — The remedy of the mortgagee 
against parties who have injured the security is confined to the amount 
of damage which the mortgagee has suffered, however great the dam- 
age to the land may be, and he cannot succeed without alleging and 
proving that the remainder of the mortgage security and the per- 
sonal responsibility of the mortgagor are insufficient to afford him 
complete indemnity.' 

■Van Pelt v. McGraw, 4 N. Y. (4 *Tomlinson v. Thomson, 27 Kans. 

Comst.'* no, 112. See Peterson v. Clark, 70. 

15 Johns. 205, where it was held that a 'Harris v. Barmore, 78 Ky. 568 ; 

mortgagee could not maintain trover for Pierce v. Goddard, 22 Pick. 559 ; 33 Am. 

trees cut by the mortgagor before for- Dec. 764. 

feiture. 'Bank of Rome v. Mott, 17 Wend. 

' Gardner v. Heartt, 3 Den. 232 ; Bank 554. 

of Rome V. Mott, 17 Wend. 554. 'Lane v. Hitchcock, 14 Johns. 213; 

'Van Pelt v. McGraw, 4 N. Y. (4 Gardner v. Heartt, 3 Den. 232 ; Levy v. 

Comst.) no; Wilson v. Maltby, 59 The Mayor, etc., of N. Y., 3 Robt. 194; 

N. Y. 126. Southworth V. Van Pelt, 3 Barb. 347. 



§ 191.J WASTE. 127 

§ 191. Miscellaneous examples. — ^Wiere a second mortgagee, 
being in possession of tlie mortgaged property, known to him to be 
an inadequate security and the mortgagor being known to be insolv- 
ent, cut timber from the land, thereby lessening its value, the holder 
of the first mortgage seized such timber and converted it to his own 
use, and on being sued for such conversion was held entitled to allege 
the foregoing facts as a valid counter-claim.' 

In a case where, with intent to injure the mortgagee's security, the 
owner of a chattel mortgage on certain hop-poles, who had parted 
with no new consideration on receiving such chattel mortgage, re- 
moved them from the land, the mortgagee of the land was held justi- 
fied in selling the poles under a judgment for deficiency obtained on 
a foreclosure of his mortgage. It was said that an action of trover 
could have been sustained, and that the rule in this State, which con- 
siders a mortgage of real estate as creating a Hen rather than 
vesting a title, does not change this question.' It may be remarked 
that if trover could be sustained, so also could replevin, and it has 
been held in Ehode Island that a mortgagee may maintain replevin 
against a mortgagor in possession for wood and timber cut upon the 
mortgaged estate in waste of the same and in substantial diminution 
of the security.' Under the theory of mortgages which prevails in 
this State and pursuant to which a mortgage is not a title, but a lien, 
and that without any right to possession, it may be doubted, notwith- 
standing the case of the hop-poles already cited, as to whether any 
action in the, nature either of trover or replevin would lie by the 
mortgagee, his remedy being an action for damages in the nature of 
an action on the case.* 

It has been held that timber, posts, rails, and cord-wood made from 
trees on the mortgaged premises fraudulently cut down by the mort- 
gagor after the commencement of the foreclosure and removed to 
neighboring lands, may be sold to make up any deficiency in the 
mortgage debt after the sale of the land.° And when, after a decree 
of foreclosure against an insolvent corporation, it quarried stone on 



' Carpenterv. Manhattan Life Ins. Co., * Peterson v. Clark, 15 Johns. 205; 

93 N. Y. 552, affi'g 22 Hun, 49. Wilson v. Maltby, 59 N. Y. 126 ; Kirch- 

^ Sullivan v. Toole, 26 Hun, 203, citing ner v. Schalk, 39 N. J. L. 335 ; Hill v. 

Watson V. Hunter, 5 Johns. Ch. 169. See Gwin, 51 Cal. 47 ; Clark v. Reyburn, i 

also Holland v. Hodgson, L. R. 7 C. P. Kans. 281. 

328. ' Higgins V. Chamberlin, 32 N. J. Eq. 

' Waterman v. Matteson, 4 R. I. 439. 566. 



128 MOETaAGES Oi" EEAL PEOPEBTY. [§ 191. 

the premises, which stone still remained on the ground, it was held 
that as between the mortgagor and mortgagee such stone was subject 
to the mortgage.' 

After the foreclosure of a senior mortgage and a sale thereunder, 
it is unnecessary for a junior mortgagee to foreclose and sell under his 
mortgage in order to maintain an action against a grantee of the mort- 
gagor for an injury to his mortgage interest." 



' American Trust Co. v. North Belle- ^ Wharton v. Webster, 56 Wis. 356. 
ville Quarry Co., 31 N. J. Eq. 89. 



CHAPTER VI. 



MOKTaAGES FOE FUTUEE ADVANCES OE OBLIGATIONS. 



) 192. Validity of mortgages for future 
advances. 

193. Parol evidence. 

194. When no sum is mentioned. 

195. Examples. 

196. Construction. 

197. Agreement for further advances 

made subsequent to mortgage. 
ig8. A mortgage is only enforceable for 
the amount actually advanced. 



§ 199. Priority of mortgages for future 
advances. 

200. Where mortgagee is not obligated 

to make the advances. 

201. Notice to charge mortgagee. 

202. Extent of lien as against the 

grantee of the mortgagor. 

203. Recording of mortgages for future 

advances. ' 



§ 192. Validity of mortgages for future advances. — ^Mortgages 
may be given to secure any valid debts or obligations, and they may as 
well be given to secure future advances or contingent debts as those 
which already exist and are certain and due.' 

The giving of a mortgage to secure future advances by a debtor in 
failing circumstances is not, in itself, proof of a fraudulent intent." 
The mortgagee in such a case is a purchaser for value, and his rights 
are not aflEected by a prior unrecorded mortgage.^ But when such a 
mortgage is executed in contemplation of insolvency for an amount 
in excess of the indebtedness from the mortgagor to the mortgagee. 



' Ackerman v. Hunsicker, 85 N. Y. 43 ; 
Brown v. Kiefer, 71 N. Y. 610 ; Judge 
Story, in Conrad v. The Atlantic Ins. 
Co., I Pet. 386, 447 ; Leeds v. Cameron, 
3 Sumn. 448 ; United States v. Hboe, 3 
Cranch, 73 ; Hubbard v. Savage, 8 Conn. 
215 ; Walker v. Snediker, Hoff. Ch. 145; 
Commercial Bank v. Cunningham, 24 
Pick. 270 ; Lylev. Ducomb, 5 Binn. 585; 
Monell V. Smith, 5 Cow. 441 ; Lansing v. 
Woodworth, i Sandf. Ch. 43 ; Barry v. 
Merchants' Exchange Co., i Sandf. Ch. 
280, 314 ; BrinckerhofI v. Marvin, 5 
Johns. Ch. 320 ; Bank of Utica v. Finch, 

9 



3 Barb. Ch. 297 ; Livingston v. Mclnlay, 
16 Johns. 165 ; Truscott v. King, 6 N. 
Y. (2 Seld.) 160 ; Robinson v. Williams, 
22 N. Y. 383 ; Collier v. Faulk, 69 Ala. 
58 ; Nelson v. Boyce, 7 J. J. Marsh (Ky.) 
401 ; 23 Am. Dec. 411 ; Berry v. O'Con- 
ner, 33 Minn. 29; Jones v. Guaranty, etc.,. 
Co., 101 U. S. 622 ; Boswell v. Good- 
win, 31 Conn. 74 ; Hook v. Creamer, 34 
N. J. Eq. 181. ; Bank v. Morsell, i Mac- 
Arthur, (D. C.) 155. 

" Newkirk v. Newkirk, 56 Mich. 525. 

' Moore v. Ragland, 74 N. Car. 
343- 



130 MOETGAGES OP KEAL PEOPEETT. [§ 193. 

this throws upon the mortgagee the burden of proving the honesty 
of the transaction.' 

§ 193. Parol evidence. — In order that a mortgage for future ad- 
vances or liabilities may be valid, it is not absolutely necessary that 
the purpose and object of the security should be set out in the 
mortgage itself, or in the defeasance, although such a course is the 
more direct and open one, and is calculated to prevent the raising of 
questions by junior purchasers or incumbrancers. It is a general rule 
that parol evidence cannot be given to contradict or deny written evi- 
dence, but to this rule there are some exceptions. Parol evidence 
may be given to contradict or explain a mere receipt, and this rule 
was long since applied to the acknowledgment of the receipt of the 
consideration expressed in a deed.' 

In McCrea v. Pv/rmort (16 "Wend. 460), the English and Ameri- 
can cases were largely considered, and it was held that it might be 
shown that the consideration was iron, of a specified quantity, valued 
at a stipulated price, instead of money paid, as expressed in the deed. 
And it was said in the opinion that the cases decided surrendered the 
consideration clause to the utmost latitude of inquiry, whenever this 
should become material to a personal action between the parties.' 

As was said by Maeshall, Ch. J., in Shi/rras v. Craig (^ Cranch, 
34), " it is not to be denied that a deed which misrepresents the trans- 
action it recites, and the consideration on which it is executed, is lia- 
ble to suspicion, and it must sustain a rigorous examination. It is 
always advisable fairly and plainly to state the truth, but if, upon in- 
vestigation, the. real transaction should appear to be fair, though 
somewhat variant from that which is described, it would seem to be 
unjust and unprecedented to deprive the person claiming under the 
deed of his real equitable rights, unless it be in favor of a person 
who has been, in fact, injured and deceived by the misrepresentar 
tion." ' 

It has been adjudged, in several cases, that parol evidence is admis- 
sible to show the purpose and intent for which a mortgage was exe- 
cuted, though upon its face it should appear to be for the payment of 
a specified sum of money. It may be shown that its purpose was se- 



' Lombard v. Dows, 66 Iowa, 243 ; ' See also Hebbard v. Haughian, 70 
Tripp V. Vincent, 8 Paige, 176. N. Y. 54. 

' Shephard v. Little, 14 Johns. 210 ; * See also Craig v. Tappin, 2 Sandf. 
Bowen v. Bell, 20 Id. 338. Ch. 78. 



§§194-195.] MOKTGAftES FOE FTTTTTEE ADVANCES. 131 

curity for future advances or responsibilities, or for balances which 
might be due from time to time.' 

A mortgage purporting to be given for a note, may be shown to 
have been given for indemnity only.'' 

A mortgage for a specific sum may be shown to be intended as se- 
curity for a general balance^ of accounts or anticipated dealings, by 
the terms of a receipt for the security, given by the mortgagee and 
accepted by the mortgagor at the time of its delivery.' 

Parol evidence is also admissible to show that the mortgage was 
given to secure advances to be made by a party not named in the 
mortgage,* or to a person other than the mortgagor.' 

§ 194. When no sum is mentioned. — If no sum be mentioned, 
but if the purpose of the mortgage is stated to be to secure the pay- 
ment of all future advances, or of all liabilities of a certain kind to be 
thereafter incurred, this wiU be sufficient, for, in a technical sense, 
that is certain which can be made certain,' and if the instrument is 
sufficiently certain to be valid against the mortgagor, it will also be 
equally valid as against all persons claiming under him.' 

An absolute deed, intended as security for future advances or re- 
sponsibilities, is valid as a mortgage, and the purpose for which it 
was given may be shown by parol.' 

§ 195. Examples. — ^In Shvrras v. Oraig (7 Cranch, 34), a mort- 
gage purported to secure a debt of £30,000 sterling to all the mort- 
gagees. It was shown by parol evidence that the intent and purpose 
of the mortgage was to secure different sums due at the time to dif- 

' Marvin, J., in McKinster v. Bab- ' Robinson v. Williams, 22 N. Y. 380 ; 
cock, 26 N. Y. 378, 380 ; Lawrence v. Miller v. Lockwood, 32 N. Y. 299 ; Mo- 
Tucker, 23 How. U . S. 14 ; Bank of nell v. Smith, 5 Cow. 441 ; Kramer v. 
Utica V. Finch, 3 Barb. Ch. 293 ; Hall The Trustees of the Farmers' Bank, 15 
V. Crouse, 13 Hun, 557 ; Bell v. Flem- Ohio, 253 ; Merrills v. Swift, 18 Conn, 
ing's Ex'r, 12 N. J. Eq. 13 ; Foster v. 266 ; Loews v. De Forest, 20 Conn. 442 ; 
Reynolds, 38 Mo. 553 ; Brewster v. Ketchum v. Jauncey, 23 Conn. 127; Col- 
Clamfit, 33 Ark. 72 ; Collins v. Carlile, Her v. Faulk, 69 Ala. 58 ; Witzinski v. 
13 111. 254 ; Darst v. Gale, 83 111. 136 ; Everman, 51 Miss. 841 ; Insurance Co. 
Hendrix v. Gore, 8 Oreg. 406 ; Tully v. v. Brown, 11 Mich. 266 ; Machette v. 
Harloe, 36 Cal. 302 ; Griffin v. N. J. Oil Wanless, i Colo. 225 ; McDaniels v. 
Co., II N. J. Eq. 49 ; Bacon v. Brown, Colvin, 16 Vt. 300. 
19 Conn. 29. ' Youngs v. Wilson, 27 N. Y. 351. 

' Morrill v. Morrill, 53 Vt. 74. ' Harper's Appeal, 64 Pa. St. 315 ; 

2 Brackett v. Sears, 15 Mich. 244. Fessler's Appeal, 75 Id. 483 ; Myers's 

* Hall V. Crouse, 13 Hun, 557. Appeal, 42 Id. 518 ; Kline v. McGuckin, 

' Commercial Bank v. Cunningham, 25 N. J. Eq. 433. 
24 Pick. 270 ; 35 Am. Dec. 322. 



133 MORTGAGES OP EEAL PEOPEKTT. [§ 195. 

ferent mortgagees, and advances afterward to be made and liabilities 
to be incurred to an uncertain amount. 

In Bamk of Utica v. Finch (3 Barb. Ch. 293), a mortgage for 
$30,000 was recorded, and it was held that the holder might show 
that it was, as a matter of fact, made as security for future advances, 
and that he might be secure in his lien to the extent of his advances 
within that amount, except as such lien might be affected by the 
equities of subsequent grantees or incumbrancers attaching previous 
to any advance. 

In Truscott v. King (6 N". Y. [2 Seld.] 147), a judgment was con- 
fessed for $20,000. It was shown by parol evidence that the purpose 
of the judgment was security for future advances. 

In McKvnster v. Bahcoch (26 N. Y. 378), a chattel mortgage re- 
cited that the mortgagor was indebted to the mortgagee in the sum 
of $1,000, being for money advanced, and that the mortgage was 
made to secure said debt. It was shown by parol evidence that the 
real consideration of the mortgage was the indorsement by the mort- 
gagee of the mortgagor's note for $1,000, and of other notes which 
were substituted therefor ; and the mortgage was enforced for the 
amount which the mortgagee subsequently paid on account of such 
indorsements. 

In Brown v. Kiefer (71 E". Y. 610), a chattel mortgage for $5,000 
was given, payable on demand, which was intended by the parties to 
secure present and future indebtednesses. It was held to be valid, 
not only as between ihe parties, but also as against creditors. 

In Price v. Orover (40 Md. 102), a mortgage for $30,000, proved 
by parol to be to indemnify the mortgagee, who was a broker, against 
loss in carrying a specified number of shares of stock, was held valid.' 

In Simons v. Fi/rst National Bank (93 IS". Y. 269), the mortgage 
recited a consideration of $5,000, and the condition was as follows : 
" This grant is intended as collateral security for the payment of any 
indebtedness of the said first parties to the said party of the second 
part, by note or otherwise ; and whenever the said first party shall 
have paid all such indebtedness, this mortgage shall become null and 
void ; which said sums, principal and interest, the said parties of the 
first part hereby covenant and agree to pay to the party of the second 
part, in the manner and at the time or times aforesaid, and this con- 
veyance shall be void if such payment be made as herein specified." ' 

, ' Brinkmeyer v. Helbling, 57 Ind. 435. « See condition of a mortgage to secure 



§196.] MORTGAGES FOR FUTURE ADVANCES. 133 

A mortgage to indemnify an Indorser of " a note of $2,000, made 
payable to the order of the grantor, and by him signed and indorsed," 
is sufficiently certain, and the note may be identified by parol." 

§ 196. Construction. — The rules applicable to the construction of 
all writings will control as to mortgages for future advances, but in 
cases where the language is ambiguous the courts lean toward a con- 
struction which will furnish to the creditor the most complete in- 
demnity. Thus, if the condition of the mortgage is broad enough to 
cover future claims, and the language used does not forbid its appli- 
cation to existing debts and liabihties as well, both may be collected 
under it.' 

Where the condition of a mortgage deed provided for payment by 
the mortgagor to the mortgagee, in these words : " also what I may 
owe him on book," and it appeared that there was no account at 
the time, it was held that the condition referred to future accruing 
accounts.' 

Where a mortgage was given to secure a note for $5,500, and such 
advances as there had been or might be made within two years, not 
to exceed in all an indebtedness of $6,000, and advances were made, 
the mortgage was held good to cover the advances and the note for 
$5,500.' 

A mortgage expressed to be " given to secure whatever indebted- 
ness may at any time exist from the mortgagor to the mortgagee," 
includes an obligation incurred by the mortgagor by indorsing the 
note of a third person.' 

A mortgage expressed to be " executed as a continuing security for 
an amount not exceeding $93,600," secures future advances although 
the mortgagor was at the time of its delivery indebted to the mort- 
gagee in a greater sum." 

A mortgage drawn to cover any demands held by the mortgagee 
against the mortgagor will not authorize the mortgagee to buy up 
claims against the mortgagor and enforce them, unless such an intent 
is very clearly expressed in the mortgage.' 

a general balance for notes, drafts, or * Lawrence v. Tucker, 23 How. (U.S.) 

other commercial paper. Mowry v. San- 14. 

born, 68 N. Y. 153, 154. ' First Nat. Bank of Paterson v. By- 

' Goddard v. Sawyer, 9 Allen (Mass.) ard, 26 N. J. Eq. 255. 

78 ; Benton v. Sumner, 57 N. H. 117. * Fassett v. Smith, 23 N. Y. 252. 

*Page V. Ordway, 40 N. H. 253. ' Lashbrooks v. Hatheway, 52 Mich. 

3 McDaniels v. Colvin, 16 Vt. 300 ; 42 124. 
Am. Dec. 512. 



134 MOETGAGES OF EEAL PEOPEETT. [§ 197. 

Where the purpose of the security appears upon its face, only that 
purpose can be accomplished by it,' and if the limit of the amount for 
which it is to stand, or of the time within which the advances are to be 
made, is specified, that amount cannot be exceeded, and advances made 
after the time stipulated for will not be secured." 

§ 197. Agreement for further advances made subsequent to 
mortgage. — When a mortgage is made in the form of an absolute 
deed, the agreement of defeasance being in parol, it is competent, as 
between the parties, that the transfer should be allowed to stand as 
security for further debts or advances subsequently incurred, even 
though the terms of redemption contemplated when the conveyance 
was first made did not provide for such subsequent demands. In- 
deed, if nothing be said, the presumption would be, in such a case, 
that the new credits or advances were given or made by the creditor 
on the faith of the security in his hands. It was a rule of the civil 
law that if a debtor pledged property to secure a debt, and afterward 
another debt was contracted, the creditor might retain for both debts, 
provided that there was nothing to negative the presumption of an 
implied contract that the pledge should be so applied,' and there is 
strong reason to enforce the same rule in cases where the jurisdiction 
of equity is invoked to enforce a redemption of lands which had in 
form been absolutely conveyed. 

But when the mortgage recites the debt which it is made to secure, 
there is no implication of an intention to secure any further debt. In 
such a case, an agreement made subsequently to the execution of the 
mortgage, that it shall stand for a new debt, would not have any bind- 
ing force, even as between the parties, for the instrument speaks for 
itself, and the written evidence of one contract cannot, upon any 
principle, be sustained as evidence of another. The lien, as created 
by the mortgage for the payment of one debt, ceases by the satis- 
faction of that debt, and a new li4n can only be created by a new 
grant." So, where a mortgage was made to a member of a firm as 
trustee for himself and his copartners, as security for advances there- 
after to be made by that firm, it was held not to operate as security 

' Townsend v. Empire Stone Dressing * Stoddard v. Hart, 23 N. Y. 556 ; 

Co., 6 Duer, 208 ; Bell v. Radcliff, 32 Hubbell v. Blakeslee, 8 Hun, 603; Bank 

Ark. 645. of Uticav. Finch, 3 Barb. Ch. 293; John- 

8 Miller v. Whittier, 36 Me. 577. son v. Anderson, 30 Ark. 745 ; Percival 

' Jarvis v. Rogers, 15 Mass. 389; James v. Gale, 40 N. J. Eq. 440. 

V. Johnson, 6 Johns. Ch. 417, 429. 



§§198-199.] MOETGAGES FOE FUTURE ADVANCES. 135 

for advances or credits given by a new firm formed in part of mem- 
bers of the old.' 

While there may be some question as to the effect of an agreement 
made susequent to the execution of a mortgage for holding it as secu- 
rity for new advances, as between the parties to such an agreement, 
there can be no question as to its effect as against junior purchasers or 
incumbrancers. As to them, a mortgage which has been paid cannot 
be revived as a lien, and, whether they have notice of their rights or 
not, the titles or liens which have once vested in them cannot be 
taken from them without their consent." 

§ 198. A mortgage is only enforceable for the amount act- 
ually advanced upon it.° A mortgage given by a married woman 
to indemnify the indorser of her husband's paper is in no manner 
for the benefit of the holder of the paper, and an assignment of such 
a mortgage will only carry the right to recover the amount actually 
paid on the paper by the mortgagee up to the time of the assignment ; 
and a reassignment of the mortgage will have no effect to change 
the rule.* 

§ 199. Priority of mortgages for future advances. — Where a 
mortgage is executed to secure the payment of future advances, it 
being part of the contract under which the mortgage is made, that 
the mortgagee shall make the advances at certain definite periods, 
and that the mortgagor shall then accept them and pay interest upon 
them, the rights of the parties become fixed at the date of the de- 
livery of the security, and the mortgage will protect the mortgagee 
against subsequent incumbrancers whose rights are acquired before 
the advances are actually made ; provided, of course, such subsequent 
incumbrancers are not purchasers for value without notice either 
from the public records or otherwise. In such a case the debt is 
present, though the payment is future, and the security is as valid as 
if the advances were made at its date.' The circumstance that the 



' Taylor v. Post, 30 Hun, 446. Reg. 79 and note, 91, 92, by Judge Red- 

* Walker v. Snediker, Hoff. Ch. 146 ; field ; Rowan v. Sharpe's Rifle Mfg. Co.,' 

Craig V. Tappin, 2 Sandf. Ch. 78, 83. 29 Conn. 329 ; Griffin v. Burtnett, 4 Edw. 

' Vogan V. Caminetti, 65 Cal. 438'. 673 ; Hubbard v. Savage, 8 Conn. 215 ; 

*0'Hara v. Baum, 88 Penn. St. Witzinski v. Everman, 51 Miss. 841; 

114. Nelson v. Iowa & Eastern R.R. Co., 8 

'Story's Eq. Jur. § 1023 c; Crane v. Am. R.R. Rep. 82 ; Brinkmyer v. Hel- 
Deming, 7 Conn. 387 ; Boswell v. Good- bling, 57 Ind. 435 ; Brinkmyer v. Brown- 
win, 31 Conn. 74 ; s. c. in 12 Am. Law eller, 55 Ind. 487. 



136 MOETGAGES OF REAL PEOPEETT. [§ 200. 

agreement to make tlie advances is by parol, will not affect the mort- 
gagee's rights.' 

The same rule will apply where a mortgage is made to indemnify 
the mortgagee from becoming a surety or indorser, and such a mort- 
gage will have priority over a lien subsequently acquired, although 
the mortgagee may not be called upon to pay anything until long 
afterward." 

So, where a mortgage is given to secure a person who is bound to 
accept drafts, the lien of the mortgage attaches from the date of the 
obligation to accept.' 

§ 200. Where mortgagee is not obligated to make advances. 
— But other questions wiU arise when the mortgagee is not obligated 
to make the advances. In such cases the mortgagee holds a lien upon 
the land, at any given time, for the actual amount of his advances at 
that time ; * but if, with knowledge of a subsequent lien, he makes 
further advances, his rights as to the new advances would be inferior 
to such subsequent lien.° 

And it makes no difference that the later mortgage, of which notice 
is given, is also given to secure future advances to be made or not, at 
the option of the mortgagee, so long as advances under it are actually 
made before the advances under the prior mortgage over which they 
claim precedence." 

A mortgage for future advances is prior as a lien, for all advances 



' Piatt V. Griffith, 27 N. J. Eq. 207. Cas. 514 ; Bank of Montgomery Coun- 

' Uhler V. Semple, 20 N. J. Eq. 288. ty's Appeal, 36 Penn. St. 172 ; Bell v. 

^Choteau v. Thompson, 2 Ohio St. Fleming, i Beasley (N. J.) i, 16; Frye 

114- V. Bank of Illinois, 11 111. 367, 381; 

'' Robinson v. Williams, 22 N. Y. 380 ; Story's Eq. Jur. § 1023 c ; Article by 
Bissell V. Kellogg, 60 Barb. 617, affi'd Hon. J. F. Redfikld, in Am. Law Reg., 
65 N. Y. 432 ; Brinckerhoff v. Marvin, 5 vol. 2, N. S. iz ; Ripley v. Harris, 3 
Johns. Ch. 320, 327 ; Craig v. Tappin, Biss. igg ; National Bank v. Gunhouse, 
2 Sandf. Ch. go ; Lansing v. Woodworth, 17 S. Car. 489 ; Ladue v. Detroit, etc., 
I Id. 45 ; Kramer v. The Trustees, etc., R.R. Co., i3Mich.38o; Boswell v. Good- 
of Farmers' Bank, 15 Ohio, 253 ; Mer- win, 31 Conn. 74 ; Brinkmyer v. Brown- 
rills V. Swift, 18 Conn. 266 ; Lewis v. De eller, 55 Ind. 487 ; Ward v. Cooke, 17 
Forest, 20 Id. 442 ; Ketchum v. Jauncey, N. J. Eq. 93 ; Heintze v. Bentley, 34 N. 
23 Id. 127 ; Carpenter v. Blote, I E. D. J. Eq. 562 ; Sayre v. Hewes, 32 N. J. 
Smith, 491 ; Ward v. Cooke, 17 N. J. Eq. 652 ; Barnard v. Moore, 90 Mass. 
Eq. 93 ; Schulze v. Bolting, 8 Bissell, (8 Allen) 466 ; Appeal of the Bank of 
174' Commerce, 44 Penn. St. 423 ; Nelson v. 

' Brinckerhoff v. Marvin, 5 Johns. Ch. Boyce, 7 J. J. Marsh (Ky.) 401 ; 23 Am. 

320, 327 ; Robinson v. Williams, 22 N. Y. Dec. 411. 

380 ; Hopkinson v. Rolt, 9 Ho. Lords « Boswell v. Goodwin, 31 Conn. 74. 



§ 201. J MORTGAGES FOE FUTURE ADVANCES. 137 

made thereunder within the limit, to a judgment recovered subse- 
quent to the giving of the mortgage, though the advances were made 
after the recovery of the judgment, but without notice of it.' 

§ 201. Notice to charge mortgagee. — The question still remains 
as to what notice is sufficient to charge the mortgagee with knowledge 
of the rights of the incumbrancer subsequent to his mortgage, and, 
as to this point, there has been some diversity of opinion. There is 
no question that actual personal notice is sufficient, but the authori- 
ties differ as to whether the recording of the subsequent incumbrance 
is notice to the holder of the mortgage of earlier date, so far as ad- 
vances which may thereafter be made by him are concerned. On 
the one hand, it has been said that the record of the prior mortgage 
should put the junior incumbrancer upon inquiry, and that it is for 
him to be diligent in guarding his rights,'' while, on the other, it has 
been held that the person holding the prior mortgage should be 
bound by the notice contained in the public records at the time when 
the advance is actually made.' 

In this State it was held at two General Terms that a mortgage was 
only valid for the amount actually advanced at any given time, and 
that a junior incumbrancer acquired a lien as of the date of the re- 
cording of his security, which would take precedence of advances sub- 
sequently made upon the older lien, who was, in common with all 
other persons, bound by the notice given by the public records. 
These cases cited and approved the reasoning on this point contained 
in the first edition of this work.* But the Court of Appeals has set- 
tled the question in AokeriTMn v. Hunsicker (85 N. Y. 43 ; 39 Am. 
E. 621, rev'g s. c. 21 Hun, 63), by determining that a party who 
takes a mortgage to secure further optional advances, upon recording 
his mortgage, is protected against intervening liens for advances 



' Williams v. Gilbert, 37 N. J. Eq. 84. ^Ten Hoven v. Kerns, 2 Penn. St. 96; 

^ Bank of Montgomery County's Ap- Parmentier v. Gillespie, g Id. 86 ; Bos- 
peal, 36 Pa. St. 170 ; Ward v. Cooke, 17 N. well v. Goodwin, 31 Conn. 74 ; Ledyard 
J. Eq. 93 ; Wilson v. Russell, 13 Md. 495 ; v. Butler, 9 Paige, 132. So held under 
Nelson v. Boyce, 7 J. J. Marsh (Ky.) peculiar language of the Ohio statute. 
401 ; see Truscott v. King, 6 Barb. 346 ; Spader v. Lawler, 17 Ohio, 371 ; 49 Am. 
s. c. rev'd 6 N. Y. (2 Seld.) 147. Article Dec. 461 ; Ladue v. Detroit & Milwau- 
by Judge Mitchell in 11 Am. Law Reg. kee R.R. Co., 13 Mich. 380. 
N S. 273 ; note by Judge Redfield, 12 * Ketcham v. Wood, 22 Hun, 64 ; Ack- 
Am. Law Reg. 79 ; McDaniels v. Col- erman v. Hunsicker, 21 Hun, 53. 
vin, 16 Vt. 300 ; 42 Am. Dec. 512. 



138 MOETGAGBS OF EEAL PROPERTY. [§ 202. 

made upon the faith and within the limits of the security, until he 
has notice of such intervening lien, and that the recording of the 
subsequent Hen is not constructive notice to him. The opposite rule 
is said to impose the burden of diligence upon the wrong person. The 
party taking the subsequent security may protect himseKby notice, 
and, as is said by Mr. Jarman in his notes to " Bytherwood's Convey- 
ancing " : " No person ought to accept a security subject to a mort- 
gage authorizing future advances without treating it as an actual ad- 
vancement to that extent." ' 

§ 302. Extent of lien as against the grantee of the mortgagor. 

— A purchaser of the equity of redemption of mortgaged property 
who takes, subject to a mortgage, the entire amount of which is 
allowed to him out of the consideration, has nothing to do with the 
bargain out of which the mortgage arose or as to whether the amount 
secured by it has abeady been or is intended to be advanced; in 
either event he must allow his estate to be subjected to the full 
amount of the mortgage lien, for that was his bargain.'' 

Where a grantee takes subject to a mortgage for advances, which 
the mortgagee has, for a consideration, agreed to make on the per- 
formance of certain specified conditions, the mortgage is a lien for 
the full amount, though the advances have not been made, because 
the mortgagee has agreed to make them, and has assumed a hability 
on the faith of the security.' 

But if the mortgage is for voluntary advances, a stipulation in the 
conveyance of the equity of redemption to the effect that the prop- 
erty is subject to the mortgage, will not operate to give the mortgage 
any force beyond the amount actually advanced upon it ; the prop- 
erty will be subjected to the hen as it really exists and to no greater 
extent.* 

It must be borne in mind, however, that the recording of the deed 
is not notice to the mortgagee, who may continue to increase his lien 
by making new advances until he shall receive actual notice of the 
transfer.' 

' See also Jones' Ex'r v. State Bank- Jewell v. Harrington, 19 Wend. 471 ; 

ing Co., 34 N. J. Eq. 543. Hartley v. Tatham, 26 How. 158 ; i 

■^ Freeman v. Auld, 44 N. Y. 50, rev'g Robt. 246 ; Lester v. Barron, 40 Barb. 

25 How. 327, 44 Barb. 14, 37 Barb. 587; 297 ; Ladue v. Detroit & Milwaukee R. 

Ritter v. Phillips; 53 N. Y. 586. R. Co., 13 Mich. 380. 

*Cox V. Hoxie, 115 Mass. 120. ' Ackerman v. Hunsicker, 85 N. Y. 43; 

^Russell V. Kinney, i Sand. Ch. 34 ; 39 Am. R. 621, rev'g 21 Hun, 53. 



§ 203.] MOETGAGES FOE FUTTJEE ADVANCES. 139 

§ 203. Recording of mortgages for future advances. — The 
record does not always show, neither is it intended to show, the 
amount actually due or unpaid on a mortgage. It only shows the 
utmost amount or sum which the mortgage was intended to secure, 
and the only remedy for a purchaser or incumbrancer, even in ordi- 
nary cases, on finding a large mortgage ahead of him, is to ascertain, 
by inquiry from the mortgagee, who is bound to state his claims fair- 
ly, what amount is actually owing or unpaid upon it.' 

If a mortgage for future advances shows upon its face the object 
for which it is given, the recording of it will put a honafide pur- 
chaser or incumbrancer upon inquiry, and an application to the mort- 
gagee will enable him to ascertain the extent of the claims made 
under it.' If the mortgage be nominally for the payment of a cer- 
tain sum of money, it cannot be shown to have been intended as a 
lien for a greater amount, and moneys not mentioned in the mort- 
gage cannot be covered by it to the prejudice of subsequent hens.' 



' Craig V. Tappin, 2 Sandf. Ch. 78. 7 Johns. Ch. 14 ; Bank of Utica v. Finch, 

^ Youngs V. Wilson, 27 N. Y, 351 ; 3 Barb. Ch. 293 ; Walker v. Snediker, 

Robinson v. Williams, 22 N. Y. 387 ; Hoff. Ch. 145 ; Pettibone v. Griswold, 

Williamson v. Brown, 15 N. Y. 354 ; 4 Conn. 158 ; Stoughton v. Pasco, 5 Id. 

Witzinski v. Everman, 51 Miss. 841; see, 442 ; Shepardv. Shepard, 6 Id. 37 ; Hub- 

contra, Babcock v. Bridge, 29 Barb. 427, bard v. Savage, 8 Id. 215 ; Hart v. 

^ Truscott V. King, 6 N. Y. (2 Seld.) Chalker, 14 Id. 77 ; Garber v. Henry, 6 

147 ; St. Andrew's Church v, Tompkins, Watts, 57, 



CHAPTER VII. 



TIME FOE THE PAYMENT OF THE M0ET6AGE DEBT. 



EXTENSION OF TIME FOR PAYMENT. 
§ 204. Extension by parol agreement. 

205. Effect of extension. 

206. Consideration for extension. 

207. Extension must bind both debtor 

and creditor. 

EXTENSION BY RENEWAL OF NOTES. 

208. Mortgage secures tlie renewal 

notes. 

209. In order to constitute notes to be 

renewals. 

210. A change in the renewal obliga- 

tion. 

211. Examples of extension by renewals 

of notes. 

212. Extension does not, in general, 

impair lien. 

EFFECT OF EXTENSION ON RIGHTS OF 
SURETIES. 

213. When an extension of time will 

discharge a surety. 

214. If the principal debtor gives to his 

creditor his note. 

215. Land of one person mortgaged for 

debt of another. 

216. Release of mortgagor by extension 

of time to his grantee. 

217. Extension reserving rights of 

surety. 

218. Extension to discharge surety must 

be for good consideration. 



§ 2ig. Usurious consideration for exten- 
sion. 

220. Creditor must know. 

WHEN A REFUSAL BY A CREDITOR TO 
COLLECT A DEBT DISCHARGES THE 
SURETY. 

221. Creditor should collect debt on re- 

quest of surety. 

222. Reason of the rule. 

223. Request to collect must be explicit. 

224. Surety only relieved to extent of 

actual injury. 

225. No one not really a surety will be 

relieved. 

226. Surety discharged by collusion be- 

tween debtor and creditor. 

227. Guarantor of collection released 

by neglect to sue. 

SHORTENING THE TIME OF PAYMENT 
UNDER THE "DEFAULT CLAUSE." 

228. Nature of the "default clause." 

229. Default clause is for benefit of 

mortgagee only. 

230. Construction of provision as to 

default. 

231. Place where interest must be paid. 

232. Excusing default. 

233. Practice when default is excus- 

able. 

234. When default of payment of inter- 

est is waived. 



EXTENSION OF TIME FOE PAYMENT. 

§ 204. Extension by parol agreement. — The time for the pay- 
ment of the mortgage debt may be extended by agreement of the 
parties. If the obligation be under seal, and still remains executory, 
it has been held that an agreement in writing of equal solemnity is 
necessary to alter the contract in any essential particular, and that. 



§ 205.] TIME FOR PAYMENT OF MORTGAGE DEBT. 141 

too, whether the substituted agreement be supported by a new con- 
sideration or not.' But after the breach of a sealed agreement, it may 
be modified or wholly rescinded by an executory parol agreement, 
upon a sufficient consideration.'' A subsequent agreement extending 
the time of the debtor does not operate to destroy the original agree- 
ment, but only to modify it in respect to the time of payment.'' 

Although a parol agreement may not be technically sufficient to 
alter the terms of a contract under seal if made before the breach 
of such a contract, it may operate as a waiver of a right to enforce 
the obligation for a limited time if made upon sufficient considerar 
tion, and no court would enforce a specialty contract at the time of 
its maturity where the debtor had bargained and paid for indulgence, 
on the mere ground that such bargain was by parol.* 

Where an intending purchaser of mortgaged real estate called on 
the mortgagee, who promised that if he would purchase the premises 
and pay an instalment the following spring and make certain im- 
provements, and pay interest annually, he would extend the time of 
the payment for twenty years ; and the purchase was accordingly 
made on the faith of this promise, the purchaser assuming the mort- 
gage and making the payment and improvements agreed upon, this 
was held to extend the mortgage as agreed.' 

The agreement of extension must be made after the delivery of 
the bond and mortgage, since no parol evidence can be given of an 
agreement before or at that time in contradiction of the writing." 

In the absence of evidence of collusion, an agreement executed by 
the general guardian of infant mortgagees, extending the time of 
payment of principal in consideration of a payment of interest in 
advance, is valid.' 

§ 205. Effect of extension. — If a valid agreement for the exten- 

' Allen V. Jaquish, 2i Wend. 628 ; * Burt v. Saxton, i Hun, 551 ; Scott 

Eddy V. Graves, 23 Wend. 84 ; Dodge v. Frink, 53 Barb. 533 ; Tompkins v. 

V. Crandall, 30 N. Y. 294. Tompkins, 21 N. J. Eq. 338 ; Margott v. 

" Dodge V. Crandall, 30 N. Y. 294 ; Renton, Id. 381 ; Re Betts, 4 Dillon, 

Lattimore v. Harsen, 14 Johns. 330 ; 93 ; 7 Reporter, 225 ; Frayser v. Trus- 

Dearborn v. Cross, 7 Cow. 48 ; Fleming tees of Indiana Asbury University, 39 

V. Gilbert, 3 Johns. 528 ; Keating v. Ind. 556 ; Albert v. Grosvenor Invest- 

Price, I Johns. Cas. 22 ; Delacroix v. ment Co., L. R. 3 Q. B. 127. 

Bulkley, 13 Wend. 71 ; Townsend v. ' Burt v. Saxton, i Hun, 551 ; 4 T. & 

Empire Stone Dressing Co., 6 Duer, 208 ; C. 109. 

Fish V. Hayward, 28 Hun, 456. * Martin v. Rapelye, 3 Edw. Ch. 

' Hasbrouck v. Tappen, 15 Johns. 200 ; 229. 

Dodge V. Crandall, 30 N. Y. 294. ' Willich v. Taggart, 17 Hun, 511. 



143 MOETGAGES OF EEAL PKOPEKTT. [§ 206. 

sion of tlie time of payment of the mortgage debt be made, it will 
constitute a defense to an action for the foreclosure or enforcement 
of the mortgage commenced before the expiration of the new term 
of credit.' A mortgage cannot be foreclosed until the debt which it 
secures is due and payable, even though the security be impaired and 
rendered precarious by the delay.^ 

§ 306, Consideration for extension. — ^A promise to forbear the 
collection of a debt, not founded upon a new consideration, is void ;° 
but it has sometimes been thought that mutual promises, on the one 
hand to waive payment at the time specified, and to accept of the 
money at a later date, and on the other to pay principal and interest 
at the expiration of the extended term of credit, furnished sufficient 
consideration for each other.* 

In Orirman v. Piatt (31 Barb. 328), a grantee of the mortgagee, 
who was not personally liable for the payment of the mortgage debt, 
sent a check to the mortgagee of the amount of an instalment of in- 
terest then due, with a note asking for an extension of the time of 
payment, and telling the mortgagee to use the check if he would ex- 
tend. The mortgagee used the check, and it was held that this 
amounted to an acceptance of the proposition and an extension of 
the mortgage, and that an injunction would lie to restrain foreclosure 
until the expiration of the time asked for. 

An agreement to increase the interest to the legal rate from a 
smaller rate is sufficient consideration for an extension.' So, also, is 
payment of interest or of part of the principal in advance ; " or the 
assuming of the mortgage debt by a purchaser in reliance upon such 
an agreement ; ' or the payment of an instalment of interest by a 
grantee of the mortgagee not personally obligated to make such pay- 



' Grinnan v. Piatt, 31 Barb. 328 ; Saxton, i Hun, 551 ; s. c. 4 N. Y. Sup. 

Dodge V. Crandall, 30 N Y. 294. (T. & C.) 109 ; Pierce v. Goldsberry, 51 

2 Campbell v. Macomb, 4 Johns. Ch. Ind. 52 ; Bailey v. Adams, 10 N. H. 

534 ; Building Association v. Piatt, 5 162. Compare Wakefield Bank v. Trues- 

Duer, 675. dell, 55 Barb. 602 ; Preston v. Henning, 

' Miller v. Holbrook, i Wend. 317 ; 6 Bush (Ky.) 556. 

Reynolds V. Ward, 5 Wend. 501 ; Patchin ' Haggerty v. Allaire Works, 5 Sand. 

V. Pierce, 12 Wend. 61; Gibson v. Renne, 231. 

19 Wend. 389 ; Pabodie v. King, 12 * Newsam v. Finch, 25 Barb. 175 ; Re 

Johns. 426 ; Fulton v. Matthews, 15 Betts, 4 Dillon, 93 ; 7 Reporter, 225 ; 

Johns. 433 ; Hall v. Constant, 2 Hall, Maher v. Lanfrom, 86 111. 513. 

185. ' Burt V. Saxton, i Hun, 551 ; 4 T. & 

* Clark V. Dales, 20 Barb. 42 ; Burt v. C. log. 



§§207-208.] TIME FOE PAYMENT OF MOETGAGE DEBT. 143 

ment ; ' or the giving by the debtor of additional security for the 
debt." 

The payment by the debtor of part of the debt, the whole being 
due, does not furnish a consideration for a stipulation to extend the 
balance, since, in making such part payment, the debtor only does 
what the law requires him to do.° 

§ 207. Extension must bind both debtor and creditor. — Both 
mortgagor and mortgagee must be parties to any agreement for exten- 
sion in order that they shall be entitled to rights under it. Thus, a 
mortgagor is not entitled to the benefit of an agreement between the 
mortgagee and his assignee pursuant to which the time for the ps,y- 
ment of the mortgage is to be extended, and the assignee may fore- 
close notwithstanding.* 

EXTENSION BY EENEWAL OF NOTES. 

§ 208. Mortgage secures the renewal notes. — "Where a mort- 
gage is given to secure the payment of a particular debt mentioned 
therein, the mortgagee cannot, as against subsequent purchasers or 
incumbrancers, hold it for an entirely distinct and different debt, upon 
parol proof that it was intended to cover that debt also ; and when 
the original debt is paid, the mortgage will cease to be a lien.' But 
where the mortgage is given to secure a particular debt, with a con- 
dition to be void on payment, the mortgagee does not lose his security 
by the mere extension of the time of payment, although the exten- 
sion is in the form of a renewal of the note which is held as a col- 
lateral security for the payment of the same debt, where it is not the 
intention of either partyto discharge the mortgage security.' 



' Grinnan v. Piatt, 31 Barb. 328 ; Jes- Purser v. Anderson, 4 Edw. 17 ; Marvin 

ter V. Sterling, 25 Hun, 344. v. Vedder, 5 Cow. 671 ; Taylor v. Post, 

'Jester v. Sterling, 25 Hun, 344 ; Fray- 30 Hun, 446 ; Hubbell v. Blakeslee, 8 

ser V. Trustees Indiana Asbury Univers- Hun, 603 ; Hughes v. Johnson, 38 Ark. 

ity, 39 Ind. 556. 285. 

2 Ritch V. Smith, 60 How. 13 ; Id. 157; 'Dunham v. Dey, 15 Johns. 555 ; The 
Lowman v. Yates, 37 N. Y. 601 ; Halli- Bank of Utica v. Finch, 3 Barb. Ch. 293; 
day V. Hart, 30 N. Y. 474 ; Olendorf v. Chapman v. Jenkins, 31 Barb. 164 ; Bab- 
Union Bank, 31 Md. 126 ; Scott v. Stock- cock v. Morse, 19 Barb. 142 ; BoUes v. 
well, 65 How. 249 ; Kellogg v. Olmstead, Chauncey, 8 Conn. 389 ; Mayer v. Grot- 
25 N. Y. 189. tendick, 68 Ind. i ; Kieser v. Baldwin, 

*Lee V. West Jersey Land Co., 29 N. 62 Ala. 526 ; Sloan v. Rice, 41 Iowa, 465; 

J. Eq. 377. Post V. Robbins, 35 Iowa, 208 ; Humph- 

' Mead v. York, 6 N. Y. (2 Seld.) 449 ; reys v. Danser, 32 N. J. Eq. 220 ; Du- 

Truscott V. King, 6 N. Y. (2 Seld.) 147 ; mell v. Ferstagge, 23 Ind. 397 ; Dunshee 



144 MOETGAGES OF REAL PEOPEETY. [§§309-210. 

If the debt secured by the mortgage is put in judgment, the lien is 
not thereby lost, but the mortgage still subsists as security for the 
judgment.' 

When a note secured by mortgage is indorsed and transferred, the 
acceptance by the indorsee of a new note, while it discharges the 
mortgagee as indorser of the old note, in the absence of an agreemeat 
to the contrary, does not extinguish the debt or impair the mortgage 
security." 

§ 209. In order to constitute notes to be renewals which shall 
take the place of the notes secured by the mortgage, it is not neces- 
sary that they shall be issued for the same amounts, at the same 
periods, and that each successive note has been appUed to take up its 
immediate predecessor, and it will be sufficient if the notes finally 
given represent the original debt which the mortgage was made to 
secure.' 

So, a mortgage lien to indemnify mortgagees against loss by reason 
of their having accepted drafts for the accommodation of the mort- 
gagors, is not necessarily lost by a change of the evidences of liability, 
as where the first acceptances are taken up with the proceeds of hke 
acceptances made for that purpose.' 

§ 210. A change in the renewal obligation that wiU change the 
identity of the debt will be fatal to its connection with the mortgage. 
Thus, if a note payable in any legal tender and secured by mortgage 
is surrendered on the receipt of a new contract, payable in gold, the 
new debt cannot be collected under the original lien.' So, where a 
party having a note secured by mortgage, after institution of pro- 
ceedings in bankruptcy by him against the maker, entered into an 
agreement with the other creditors of the maker to dismiss the pro- 
ceedings in bankruptcy against the maker, and to take a new note, 
payable in two years from date with interest, in the absence of proof 
of a contrary intention of the parties, it was held that the mortgage 
was released." And where A gave a mortgage to B, to indemnify 
him in case he should have to pay the debt of A, conditioned that 
A should pay and satisfy the note by renewal or otherwise, and A re- 



V. Parmalee, ig Vt. 172 ; Oliphant v. ' Gault v. McGrath, 32 Penn. St. 392. 
Esterly, 36 Ark. 69; Watkins v. Hill, 25 *Choteau v. Thompson, 3 Ohio St. 

Mass. (8 Pick.) 522. 424. 

' Darst V. Bates, 95 111. 493. ' Pratt v. Stearns, 31 Cal. 78. 

' McGuire v. Van Pelt, 55 Ala. 345. ' Jarnagan v. Gaines, 84 111. 203. 



§ 211.] TIME FOR PAYMENT OF MORTGAGE DEBT. 145 

newed his note witli difEerent securities, whereupon B assigned the 
mortgage to the new securities ; it was held that the rights of B 
ceased upon the renewal and that the mortgage could not be assigned 
so as to cut o£E the intervening rights of other mortgagees.' 

§ 211. Examples of extensions by renewals of notes. — In 
Brviickerhoff v. Lomsmg (4 Johns. Ch. 65), a mortgage was given as 
security for $1,050, represented by a note given to a bank, which 
note was renewed from time to time, it being reduced to $400, and 
afterward increased to $T20 ; it was held that the mortgage stood as 
security for the last note. It was thought that the increase of the 
debt on the periodical renewal, provided that the debt was kept with- 
in its original limits, did not affect the security, and that the last note 
and all intermediate renewals represented the same debt for which the 
mortgage was given, subject only to those fluctuations in amount 
which are customary in such bank operations. 

In Chapman v. Jenkins (31 Barb. 164), a maker of a note ex- 
ecuted a chattel mortgage to his sureties and indorsers, to secure 
them for their liability as such, and they were duly charged by notice 
of non-payment. The note was paid by the proceeds of a new note 
made by the mortgagor and indorsed by the mortgagees, for the ex- 
press purpose of raising money to pay the first note. It was held that 
the mortgage continued as security for the amount of the second note, 
and that parol evidence was competent to show the relations of the 
parties, and that it was not intended that the payment of the first note 
with the proceeds of the second should extinguish the mortgage. 

In Rogers v. The Traders' Ins. Co. (6 Paige, 583), the mortgagee 
of a steamboat, who had taken the mortgage as security for the pay- 
ment of a note indorsed by him, was compelled to pay the note when 
it became due, and to save the credit of the drawers, he gave them 
his new note to take up the old one, instead of suffering it to be pro- 
tested. It was held that the debt for which the mortgage was given 
was not extinguished, and that the mortgage still remained a yaUd 
lien upon the boat for the security of the amount due the mortgagee. 

In Pond V. Clarh (14 Conn. 334), a mortgage was given to secure 
the mortgagee for his indorsement of certain specified notes. Such 
notes as they became due were renewed by the substitution of other 
notes or drafts having different names upon them, but the obligation 



' Bonfaam v. Gallaway, 13 III. 68. 
10 



146 MORTGAaES OF EEAL PKOPERTT. [§ 212. 

of the original indorsement by the mortgagee was preserved through 
all the renewals, and the substituted paper was ultimately discharged 
by him. It was held that the mortgage remained in full force for 
the substituted indorsements. 

§ 213. Extension does not, in general, impair lien. — It is ex- 
tremely well settled in this State that the taking of a debtor's note 
does not merge or extinguish the demand for which it is taken,' al- 
though it be expressly agreed to take the note in satisfaction.'' It is true 
that a mortgage is but an incident of the debt, so that when the debt 
is gone, that is gone also ; but it is an error to consider a mortgage 
as incidental to the note instead of the demand. Accurately speak- 
ing, a note is not a debt at all, any more than any other mere promise. 
Unless founded on a consideration, it is good for nothing between the 
original parties. A note is really the evidence of a debt, and a mort- 
gage to secure a note is simply a security for the debt evidenced by 
the note. The conclusion is inevitable that the security stands until 
it is in some way separately cancelled, or until the debt itself is dis- 
charged. Taking a substituted note does not affect the debt, and con- 
sequently cannot affect the security.' 

Taking a note of the debtor as collateral security merely to a bond 
indebtedness without any agreement, either express or implied, for an 
extension, has been held not to operate as a binding extension so as to 
release the lands of a surety.* But an extension of the time of pay- 
ment of a note secured by mortgage without the consent of the surety, 
if this extension is made by accepting- a renewal note, has been held 
to operate as a discharge." 

The validity of the lien is not impaired though the time for the 
payment of the debt be extended by stipulation between the original 
parties after the land upon which it is a charge has been transferred 
to a purchaser." Though this will be different where the land 
stands as a surety for the debt of a person other than its owner." So, 

' Gregory v. Thomas, 20 Wend. 17 ; Duer, 107 ; Gahn v. Niemcewicz, 11 

Waydell v. Luer, 5 Hill, 448 ; Cole v. Wend. 312, afB'g s. c. 3 Paige, 614. 

Sackett, I Hill, 516. "Scott v. Stockwell, 65 How. 249, 

» Cole V. Sackett, i Hill, 516 ; Waydell affi'd 28 Hun, 641. 

V. Luer, 5 Id. 448 ; Hawley v. Foote, 19 * Ayres v. Wattson, 57 Penn. St. 360 ; 

Wend. 516: Frisbie v. Larned, 21 Id. Hubbard v. Gurney, 64 N. Y. 457. 

450, 452. ' Kuhrs V. McGeah, 38 Ohio St. 468. 

' Hill V. Beebe, 13 N. Y. (3 Kern.) ' The Bank of Albion v. Burns, 46 

556, 562 ; Butler v. Miller, i N. Y. (i N. Y. 170, afB'g 2 Lans. 52 ; Smith v. 

jCpmst.) 496, 500 ; Westcott v. Gunn, 4 Townsend, 25 N. Y. 479. Sec. 215. 



§§213-214.] TIME FOE PAYMENT OF MORTGAGE DEBT. 147 

an extension of time does not impair the security so as to give any new 
rights to the holders of junior liens.' 

EFFECT OF EXTENSION ON EIGHTS OF STJEETIES. 

§ 213. When an extension of time will discharge a surety. — 

If the payment of the mortgage debt is secured by the collateral obli- 
gation of some other person who occupies the position of a surety 
with relation to it, such surety will be discharged by any valid and 
binding agreement made by the mortgagee with the principal debtor, 
without the consent of the surety, by which the time for the payment 
of the mortgage debt is extended or postponed ; and this, not only 
whether any loss has thereby happened to the surety or not, but even 
if it has been an actual benefit.' One reason for this rule may be 
found in the fact that the extension of time makes a material change 
in the contract ; the original agreement is thereby annulled, and the 
surety is under no obligation under the agreement which is substi- 
tuted for it.' Another reason, and this is the one which has received 
the most favor in courts of equity, is that by the extension the surety 
may be delayed for a time in the assertion of his equitable claim to 
make payment and be subrogated to the rights of the creditor.* The 
surety is by such extension also delayed in the right which he would 
otherwise enjoy, of coming into equity by a bill against the debtor 
and the creditor, to compel the debtor to make payment, and to have 
the estate upon which the debt is a charge sold for its satisfaction.' 

§ 214. If the principal debtor gives to his creditor his note, 
payable " in one day after date," the surety is discharged.' The 
acceptance of a promissory note made for a definite time, as a condi- 
tional payment, operates as an extension ; ' though it has been held 



' Bank of Utica v. Finch, 3 Barb. Ch. 30 Vt. 711 ; Myers v. First Nat. Bk., 75 

293; Naltner v. Tappey, 55 Ind. 107; 111. 257 ; Del. L. & W. R.R. Co.'v. Burk- 

Whittacre v. Fuller, 5 Minn. 508. hard, 36 Hun, 57. 

^Gahn V. Niemcewicz, II Wend. 312 ; 'Rathbone v. Warren, 10 Johns. 

Huffman v. Hulbert, 13 Id. 375 ; Miller 587. 

V. McCan, 7 Paige, 451 ; Fox v. Parker, ■'Bangs v. Strong, 10 Paige, 11 ; King 

44 Barb. 541 ; Haskell v. Burdette, 35 v. Baldwin, 2 Johns. Ch. 554, 560. 

N.J. Eq. 31 ; Kane v. Cortesy, 100 N. 'King v. Baldwin, 2 Johns. Ch. 554, 

Y. 132 ; Bangs v. Strong, 7 Hill, 250 ; 560 ; s. c. 17 Johns. 384 ; Hayes v. Ward, 

Murray v. Marshall, 94 N. Y. 611 ; Spcn- 4 Johns. Ch. 123, 132 ; Story's Eq. Jur. 

cer V. Spencer, 95 Id. 353 ; Lim. Bank § 639. 

V. Mallett, 34 Me. 547 ; Gifford v. Allen, ^Fellows v. Prentiss, 3 Den. 512. 

3 Mete. (Mass.) 258 ; Wright v. Bartell, 'Hubbard v. Gumey, 64 N. Y. 457 ; 

43 N. H. 548 ; People's Bank v. Pearson, Ayres v. Wattson, 57 Penn. St. 360. 



148 MORTGAGES OP EEAL PROPERTY. [§ 215. 

that this is not the case if the note is received as collateral security 
merely.' 

In Newswrn v. Fvnch (25 Barb. 175) a promissory note for $25 
was signed by the defendant as surety. Before it became due the 
maker of the note paid $10 on account, and, in consideration of this 
payment, it was agreed that the maker of the note "might have his 
own time to pay the balance," and it was held that this extended the 
time after the note became due by its terms for such a period as, 
under all the circumstances of the case, should be reasonable, and that 
the surety was discharged. 

A defense of a surety to a promissory note alleging that the payee, 
without. the knowledge or consent of the surety, released a mortgage 
on real estate executed by the principal maker to the payee to secure 
the note, and extended the time for a definite period after maturity, 
in consideration of a new mortgage, is good.^ 

§ 315. Land of one person mortgaged for debt of another. — 
It is not necessary that the whole estate of one person should be bound 
as collateral to the debt of another in order to give him the rights of 
a surety. It is sufficient if any part of his property is pledged in 
such a way that it may become answerable for an obligation which it 
is the duty~of some other person or estate, in the first instance, to pay 
and discharge. If, therefore, the real estate of a wife is mortgaged 
by her to secure the payment of her husband's debt, her lands stand 
as surety for the obligation, and any valid and binding extension of the 
time of payment, made without her consent, vrill discharge the lien." 

But where a husband and wife executed a note and mortgage on 
the wife's land to indemnify an indorser on the husband's note, it was 
held that the extension of the time of payment of the husband's in- 
dorsed note did not release the mortgagor, the mortgage note never 
having been extended.* 

Payment by a debtor of a part of the debt after the maturity of 
the whole is not a consideration sufficient to make an agreement of 
extension binding, and a surety will not be discharged thereby.' 

' Scott V. Stockwell, 65 Hpw. 249, 22 Kans. 363 ; Chrlstner v. Brown, 16 

afiS'd 28 Hun, 641. Iowa, 130 ; Metz v. Todd, 36 Mich. 473 ; 

'Holland v. Johnson, 51 Ind. 346. Insurance Co. v. O'Donnell, 41 Ohio St. 

' The Banlc of Albion v. Burns, 46 N. 650 ; Eisenberg v. Albert, 40 Ohio St. 

Y. 170 ; s. c. 2 Lans. 52 ; Smith v. 631 ; Haskell v. Burdette, 35 N. J. Eq. 

Townsend, 25 N. Y. 479 ; Gahn v. Niem- 31. 

cewicz, II Wend. 312 ; Niemcewicz v. * Wise v. Willard, 4i-Ohio St. 679. 

-.Gahn, 3 Paige, 614 ; Hubbard v. Ogden, " Ritch v. Smith, 60 How. 13 ; Id. 157. 



§ 216.] TIME FOE PAYMENT OF MOBTGAGE DEBT. 149 

An extension of the mortgage debt will not discharge sureties on an 
undertaking to pay an occupation rent, pending an action to foreclose.' 

§ 216. Release of mortgagor by extension of time to his 
grantee. — ^In the cases cited in which sureties hare been discharged 
by the conduct of creditors in extending the time of payment, or in 
refusing to enforce payment when they might have done so, the rela- 
tionship of principal and surety has, in general at least, been estab- 
lished/by contracts to which in each ease the creditors, the debtors, 
and the sureties, all were parties. The relationship of principal and 
surety was, in every case, one which was created by the contract of 
the parties. But when reference is had to rights under mortgages of 
land, there are many cases where the law designates one .person or 
fund as being the proper one for the satisfaction of the mortgage 
debt, and other persons or funds as sureties, and where, these rights 
do not arise from the original form of the contract under which the 
mortgagee claims, but from equitable considerations depending on 
contracts or transactions to which the mortgagee was a stranger. 

As an example of such a question, the case may be put of a mort- 
gagor who conveys the mortgaged estate to a person who assupaes lie 
payment of the mortgage debt. The mortgagor, after this transac- 
tion, is, as between himself and his grantee, only obligated to pay the 
debt if his grantee does hot, and in the language of the decisions he 
is spoken of as being a surety.' If the grantee does not personally 
obligate himself to pay the debt, still, if the conveyance be made 
subject to the mortgage, the land is the primary fund out of Avhich 
the debt should be collected, and the mortgagor stands as its surety.' 

Where the grantee has assumed the payment of the mortgage debt, 
making himself personally liable for its payment, a binding extension 
of time to the grantee has been adjudged to release the mortgagor on 
the principles applicable to all sureties.' 



' Cassidy v. Schedel, g Hun, 340, * Calvo v. Davies, 73 N. Y. 211 ; 29 

affi'd 71 N. Y. 603. Am. R. 130; George v. Andrews, 60 

' Rubens v. Prindle, 44 Barb. 336 ; Md. 26 ; 45 Am. R. 706 ; Paine v. Jones, 

Cornell v. Prescott, 2 Barb. r6 ; Tripp 76 N. Y. 274 ; Fish v. Hayward, 28 Hun, 

V. Vincent, 3 Barb. Ch. 613 ; Jumel v. 456 ; contra, Perkins v. Squeer, i T. & 

Jumel, 7 Paige, 591 ; Halsey v. Reed, 9 C. 620 ; Meyer v. Lathrop, 10 Hun, 66, 

Id. 446 ; Marsh v. Pike, 10 Id. 595 ; affi'd 73 N. Y. 315 ; Jester v. Sterling, 

Blyer v. MonhoUand, 2 Sandf. Ch. 478 ; 25 Hun,. 344. In Ohio the mortgagor is 

Ferris v. Crawford, 2 Den. 595 ; Mills only released to the extent of loss suf- 

V. Watson, i Sweeney, 374. fered by him. Feeters v. Lamborn, 43 

" Johnson v. Zink, 52 Barb. 396. Ohio St. 144. 



150 MOETGAGES OF EEAL PEOPEETT. [§§217-218. 

Where the grantee has not personally covenanted to pay the mort- 
gage, the conveyance being made merely subject to it, the mortgagor 
has also been held to be discharged by such an extension, on the 
ground that, although no technical relation of principal and surety 
exists between the mortgagor and his grantee, still, as the land is the 
primary fund for the payment of the debt, in respect thereto and to 
the extent of its value the grantee stands in the relation of a principal 
debtor, and the grantor has an equity similar to that of a surety." 

§ 217. Extension reserving rights of surety. — ^When, in an 
agreement between a creditor and the principal debtor extending the 
time of payment, the remedies against the surety are reserved, the 
agreement does not operate as an absolute, but only as a qualified and 
conditional, suspension of the right of action. The stipulation in that 
case is treated in effect as if it was made in express terms subject to 
the consent of the surety, and the surety is not thereby discharged." 

§ 318. Extension to discharge surety must be for good con- 
sideration. — ^But there is no positive duty incumbent on the creditor 
to prosecute measures of active diligence ; and therefore mere delay 
on his part, at least if some other equity does not interfere, unaccom- 
panied by any valid contract for such delay, will not discharge the 
surety.' The extension must be part of an agreement for that pur- 
pose, of such a nature that it can be enforced by the debtor ; that is, 
it must be upon a good consideration.* It must also have been made 
without the consent of the surety, for it would be unjust to allow a 
man to evade his obligations because of conduct of his creditor which 
he himself had encouraged or sanctioned.' 

In a case where a wife mortgaged her land to secure a debt of her 
husband, upon which she was liable only as surety, and the mortgagee! 



' Spencer v. Spencer, 95 N. Y. 353 ; Co. v. Hinman, 34 Id. 410 ; s. c. 13 Abb. 

Murray v. Marshall, 94 N. Y. 611, over- no ; Merritt v. Lincoln, 21 Barb. 249 ; 

ruling Penfield v. Goodrich, 10 Hun, 41, Schroeppel v. Shaw, 3 N. Y. (3 Comst.) 

and contra, Maher v. Lanfrom, 86 111. 513. 446 ; King v. Baldwin, 2 Johns. Ch. 554. 

» Per Andrews, J., in Calvo v. Da- * Draper v. Romeyn, 18 Barb. 166 ; 

vies, 73 N. Y. 211, 217 ; 29 Am. R. 130 ; Zane v. Kennedy, 73 Penna! St. 182. 

Bangs V. Strong, 10 Paige, 18 ; Kearsley ^ Wright v. Storrs, 32 N. Y. 691, affi'g 

V. Cole, 16 M. & W. 128 ; Oriental Fi- 6 Bosw. 600 ; La Farge v. Herter, 11 

nancial Corporation v. Overend, Gurney Barb. 159 ; Bangs v. Mosher, 23 Id. 478 ; 

& Co., 7 H. of L. Cas. 348 ; Morgan v. Tyson v. Cox, Turn. & R. 395 ; Smith 

Smith, 70 N. Y. 537. v. Winter, 4 M. & W. 519 ; Dubuisson 

' Story's Eq. Jur. § 326 ; Goldsmith v. v. Folkes, 30 Miss. 432 ; Shook v. State, 

Brown, 35 Barb. 484 ; Merchants' Ins. 6 Ind. 113. 



§§ 219-220.] TIME POR PATMENT OF MOKTGAGE DEBT. lol 

voluntarily granted indulgence to the husband, it was held that this 
did not operate to release the wife in the absence of any showing that 
the mortgagee had in any way agreed or bound himself to give fur- 
ther time.' 

§ 219. Usurious consideration for extension. — An agreement 
to extend the time for the payment of a debt granted upon a usurious 
consideration is void if the borrower so elects, but it will be binding 
upon the lender accepting the usury." If the person submitting to 
the usury prefers to do so in order to obtain the additional time, it 
win not be competent for the creditor to make his own violation of 
law a reason for refusing to perform' his bargain, but the borrower 
cannot insist upon a credit for the amount paid, and at the same time 
claim the benefit of the extension.' 

If the agreement by which the mortgage was extended shall have 
been made upon a usurious consideration, it will nevertheless operate 
to extinguish the claims against the surety. The defense of usury is 
personal to the borrower, and it is not competent for the usurer to 
claim any advantage because the contract which he has assumed to 
make is such that the law, at the instance of the other party to it, will 
declare it to be void.' 

§ 220. Creditor must know. — In order that the contract for for- 
bearance shall operate to release the surety, it is necessary that the 
mortgagee shaU, at the time of making it, know that the relation of 
principal and surety exists.' But if the relation of the parties ap- 
pears by matter of public record, existing at the time when the mort- 
gage is executed, or if the mortgagee subsequently receives notice of 
facts sufficient to put him upon inquiry, he is bound by all of the 
facts which a proper examination of the public records or proper in- 
quiry elsewhere would disclose.' He cannot close his eyes and then 
plead his blindness as an excuse for trespassing upon the equitable 
rights of a surety. 

■ Frickee v. Donner, 35 Mich. 151. 10 Paige, 76. Contra, Vilas v. Jones, i 

' Billington v. Wagoner, 33 N. Y. 31 ; N. Y. (i Comst.J 274 ; Schroeppel v. 

Draper v. Trescott, 29 Barb. 401 ; con- Shaw, 5 Barb. 580. 

trd, Jones v. Trusdell, 23 N. J. Eq. 555 ; *Elwoodv. Deifendorf, 5 Barb. 398. 

Id. 121. *Bank of Albion v. Burns, 46 N. Y. 

' Church V. Maloy, 70 N. Y. 63, aflS'g 170 ; Smith v. Townsend, 25 N. Y. 479 ; 

9 Hun, 148. Guion v. Knapp, 6 Paige, 41, 42 ; How- 

■• Billington v. Wagoner, 33 N. Y. 31 ; ard Ins. Co. v. Halsey, 4 Sandf. 565 ; s. 

Draper v. Trescott, 29 Barb. 401 ; Miller c. affi'd 8 N. Y. (4 Seld.) 271. 
V. McCan, 7 Paige, 451 ; Vilas v. Jones, 



152 MORTGAGES OF EBAL PEOPERTT. [§§ 231-222. 



WHEN A EEFUSAL BY A CEEDITOE TO COLLECT A DEBT DISCHAEGES 

THE STJEETY. 

§ 221. Creditor should collect debt on request of surety. — 

While, as has already been said, mere neglect of the creditor to en- 
force payment of a debt when due will not discharge the surety where 
there has been no valid agreement for an extension, and where the 
creditor is not requested by the surety to take proceedings for the 
satisfaction of his demands,' the creditor cannot refuse to collect when 
called upon by the surety to do so, without taking upon him seK the 
risk of the subsequent insolvency of the principal debtor or deprecia- 
tion in value of the primary fund. Whatever may have been the 
current of decision elsewhere, the principle was settled in this State 
many years ago, and has since been steadily maintained, that if a 
surety request a creditor to collect the debt from the principal, and 
the creditor refuse or neglect to do so at a time when it is collectible, 
and from a subsequent change of circumstances it becomes uncollecti- 
ble, the surety is by such conduct of the creditor exonerated from his 
liability. ° 

§ 233. Reason of the rule.^It is manifest that if the creditor 
actually collude with the principal to cast the debt upon the surety, 
the latter should be exonerated ;' so also if, by omitting to do an act 
on the requirement of the surety, which equity and his duty to the 
surety enjoin on him to do, the surety is injured by the omission, the 
latter ought not to be held. It is inequitable and unjust that the 
surety's liability should continue from improper motives, at the op- 
tion and for the convenience of the creditor and against the surety's 
will and express wish, until the principal becomes irresponsible. 
Duty enjoins the creditor to enforce payment from the party prima- 
rily liable ; and if requested by the surety to collect the debt when it 
is collectible from such party by measures of active dihgence, and the 
creditor refuses or neglects to do it until it becomes uncollectible 
from the principal, such conduct ought to be a defense in equity to 



•Goldsmith v. Brown, 35 Barb. 484 ; man, 25 N. Y. 552, 555 ;■ King v. Bald- 
Merchants' Ins. Co. V. Hinman, 34 Id. win, 17 Johns. 384 ; Pain v. Packard, 13 
410 ; s. c. 13 Abb. no ; Merritt v. Lin- Johns. 174 ; Warfield v. Trickey, 23 W. 
coin, 21 Barb. 249 ; Schroeppel v. Shaw, Dig. 92. Contra, Smith v. Freyler, (Mon- 
3 N. Y. (3 Comst.) 446 ; King v. Bald- tana) 29 Alb. L. J. 448. 
win, 2 Johns. Ch. 554. * Sailly v. Elmore, 2 Paige, 497. 

'' Per Wright, J., in Rerasen v. Beek- 



§§ 223-225.] TIME roE payment of mortgage debt. 153 

any suit brouglit against the surety to charge him with the payment 
of the debt.i 

§ 223. Request to collect must be explicit. — In order to dis- 
charge the surety by reason of a neglect on the part of the creditor, 
it must be shown that the creditor was requested to enforce the col- 
lection of the debt by due process of law. Nothing short of an ex- 
plicit expression of the desire of the surety that the creditor shall 
resort to his legal remedies, will be sufficient." 

§ 224. Surety only relieved to extent of actual injury. — But 
failure on the part of the creditor to comply with the request of the 
surety to enforce payment of the debt, will not operate to exonerate 
the surety, unless it results iu actual injury to him, and then only to 
the extent of such injury. The solvency of the debtor, or the suffi- 
ciency of the fund at the time when the request to collect was made, 
and subsequent insolvency or insufficiency, are essential parts of the 
defense of the surety, and must be alleged and proven by him.' A 
mere possibility or probability that compliance with the request of 
the surety would have resulted in the satisfaction of the debt, will not 
exonerate him, unless it be shown that the debt could have been col- 
lected out of the property primarily liable by legal process.* 

§ 225. No one not really a surety will be relieved. — The doc- 
trine that a surety is entitled by notice to call upon the creditor to 
proceed to collect the debt by legal proceedings against the principal 
on the debt becoming due, although no such obligation is imposed by 
the contract, and that the creditor f aihng to comply is discharged to the 
extent of the loss sustained by the delay, has not always been regard- 
ed with approval by the courts, and the tendency is not to enlarge or 
extend it. This doctrine, though frequently criticised, has not been 
overruled, but the courts have not been disposed to apply it except in 
cases where the surety became such at the inception of the contract, 
or that relation was created by dealings between the parties originally 



' Per Wright, J., in Remsen v. Beek- v. Davies, 44 N. Y. Super. (12 J. & S.) 

man, 25 N. Y. 552, 557 ; Russell v. Wein- 172 ; 56 How. 440 ; Fulton v. Matthews, 

berg, 4 Abb. N. C. 139, affi'g 2 Id. 422 ; 15 Johns. 433 ; Denick v. Hubbard, 27 

16 Alb. L. J. 164 ; Loomis v. Balheimer, Hun, 347. 
5 Abb,. N. C. 263. 2 People v. Berner, 13 Johns. 383 ; 

'Hunt V. Purdy, 82 N. Y. 486 ; Teles Huffman v. Hulbert, 13 Wend. 377; 

V. Adee, 84 N. Y. 222 ; Singer v. Trout- Merrittv. Lincoln, 21 Barb. 249; Wheeler 

man, 49 Barb. 182 ; Goodwin v. Simon- v. Benedict, 36 Hun, 478. 
son, 74 N. Y. 133 ; Mutual Life Ins. Co. ^ Herrick v. Borst, 4 Hill, 650. 



154 MORTGAGES OF REAL PROPERTY. [§§ 226-227. 

bound bj tlie contract subsequent thereto of which the creditor had 
notice.' Thus, the court refused to apply the rule to the case of an 
indorser for value on the ground that the indorser, though in the 
nature of a surety, is answerable upon an independent contract, and 
it was his duty to take up the biU when dishonored.'' And in 
a case where there was a guaranty of payment made by a vendor on 
the sale to the plaintifE of a bond and mortgage, the former receiving 
the amount of the security as the consideration of the transfer, the 
court held the assignor's engagement, though collateral in form, was 
in substance an original undertaking, and that it was his duty to pay 
the mortgage debt when it became due, and that he could not by any 
notice impose upon his assignee the duty of proceeding against the 
land.' 

§236. Surety discharged by collusion between debtor and 
creditor. — The surety will also be discharged without any request 
being made by him for the collection of the debt, if the principal 
debtor wrongfully colludes with the creditor to retain his liability ; 
as if the money be offered by the debtor to the creditor on the day it 
falls due, or afterward, and he, without the consent of the surety, re- 
quests the debtor to retain it longer, for this operates as a fraud upon 
the surety.* But to accomplish this result there should be a formal 
tender.' 

It has been held that where a mortgagee, out of kindness for the 
heirs of the mortgagor, and in the belief that the real estate would 
rise in value, delayed foreclosure until the property had so deprecia- 
ted as to be an inadequate security, he would not be allowed to pro- 
ceed against the administrators for the collection of the deficiency, 
they ha-sdng paid out the whole personal property for the payment of 
other debts, knowing that the real estate was, at the time of the death 
of the mortgagor, sufficient to pay the debts charged upon it." 

§ 227. Guarantor of collection released by neglect to sue. — 
Where a mortgage is assigned with a guaranty of collection, it is a 
condition precedent that the creditor shall diligently endeavor to 
collect the amount from the principal debtor by exhausting the ordi- 
nary legal remedies for that purpose, and if he fails to do this, the 



' Per Andrews, Ch. J., in Newcomb *Sailly v. Elmore, 2 Paige, 497. 

V. Hale, 90 N. Y. 326, 329. ^ Clark v. Sickler, 64 N. Y. 231. 

'Trimble V. Thorne, 16 Johns. 151. * Johnson v. Corbett, 11 Paige, 265, 

' Newcomb v. Hale, 90 N. Y. 326. 272. 



§§228-229.] TIME roE payment of moetgage debt. 155 

guarantor is discharged. So, the allowance of tlie lapse of one term 
after the debt becomes due, without suit against the principal, has 
been held to effect such discharge ;' and a delay of six months in 
foreclosing a mortgage has been determined to release the guarantor." 
A delay of two years and nine months after the mortgagee had been 
expressly requested by such a surety to proceed and enforce the col- 
lection of the demand while the security was probably good, has been 
adjudged sufficient to require the release of the surety.' 

This rule does not extend to the case of a guararftor of payment 
whose duty it is to make payment in the first instance.* 



§ 328. Nature of the " default clause." — It is a common thing 
to insert in bonds secured by mortgages, a clause known as a " default 
clause," which is to the effect that, if any instalment of interest or 
principal, or any tax on the mortgaged property shall remain unpaid for 
a certain number of days after it becomes due, the principal sum 
shall, at the option of the mortgagee, become due and payable. Such 
a stipulation is entirely valid and will be enforced by the courts ; it 
does not impose any penalty upon the mortgagor, and he must abide 
by the contract which he makes. The time of payment is the only 
thing which is contingent, and the parties have a perfect right to 
make the prompt payment of interest, or any other condition or 
event, the criterion which shall determine when the principal shall 
become due.' 

§ 229. Default clause is for benefit of mortgagee only. — If the 
stipulation is drawn so as to provide that the entire amount of the 
debt shall become due on a default in payment of an instalment of 
interest or the like, it is stiU for the benefit of the mortgagee only. 



' Kies V. Tifft, i Cow. g8. 28 Barb. 29 ; Rubens v. Prindle, 44 Barb. 

'Craig V. Parkis, 40 N. Y. 181 ; see 336; Dwight v. Webster, 32 Barb. 47 ; 

also Moakley v. Riggs, 19 Johns. 69 ; s. c. 19 How. 349 ; s. c. 10 Abb. 128 ; 

Loveland V. Shepard, 2 Hill, 139 ; Mer- Hunt v. Keech, 3 Abb. 204; Elwood v. 

ritt V. Bartholick, 36 N. Y. 44. Wolcott, 32 Kans. 526 ; Sharp v. Barker, 

^ Northern Ins. Co. of N. Y. V. Wright, 11 Kans. 381 ; Stanclifts v. Norton, 11 

13 Hun, 166, affi'd 76 N. Y. 445. Id. 218 ; Noonan v. Lee, 2 Black (U. S.) 

*Newcombv. Hale, 90 N. Y. 326. 500; Gulden v. O'Byrne, 7 Phila. (Pa.) 

' Crane v. Ward, Clarke, 393 ; Noyes 93 ; Redman v. Punington, 65 Cal. 271 ; 

V. Clark, 7 Paige, 179 ; Valentine v. Van - Lowensteih v. Phelan, 17 Nev. 429 ; 

Wagner, 37 Barb. 60 ; s. c. 23 How. Detweiler v. Breckenkamp, 83 Mo. 45 ; 

400 ; Ferris v. Ferris, 16 How. 102 ; s. c. Moore v. Cameron, 93 N. C. 51. 



156 MOKTOAGES 0¥ KEA.L PEOPERTr. [§ 230. 

and it cannot be taken advantage of by the mortgagor so as to permit 
him to pay the debt, though the time originally stipulated for has not 
expired.' 

A clause of this kind does not operate against the mortgagee so as 
to set the statute of limitations running against him as to the instal- 
ments of the debt not due." And a foreclosure on default of a first 
note, and payment thereof out of proceeds of sale, will not be a bar to 
an action to charge an indorser on one of the notes falling due sub- 
sequently.' 

§ 230. Construction of provision as to default. — The clause 
making the whole amount due on failure to pay an instalment of in- 
terest or of principal, need not be recited in the mortgage if it con- 
tains a reference to the bond containing such clause, as by saying that 
payment is to be made " according to the condition of a certain bond 
bearing even date with the mortgage." The object of the mortgage 
is to reinforce that obligation ; and a reference in the mortgage to the 
paper containing such obligation, makes the bond a part of the obli- 
gation for all essential purposes.' 

But the converse of this proposition is not true, and if the default 
clause be inserted in the mortgage and be not included in the bond, 
the debt may become due for the purpose of enforcing the lien, when 
only an instalment of it would be due for the purpose of an action at 
law to recover the debt. This was held in a case where a mortgage 
of a railroad gave to the trustees the right to enforce the entire mort- 
gage on any default, but the separate bonds which were secured by 
the mortgage contained no such provision." 

The court will not imply any agreement of this kind, and when a 
mortgage authorized a sale of the mortgaged premises for the pay- 
ment of the whole debt, it was held that this merely authorized a 
statutory proceeding by advertisement, and that an action to foreclose 
could be stayed by payment of the instalment due.' 

' Lowenstein v. Phelan, 17 Neb. 429 ; ' McClelland v. Bishop, 42 Ohio St. 

S. & M. R.R. Co. V. Lancaster, 62 Ala. 113. 

555 ; McClelland v. Bishop, 42 Ohio St. * Dimon v. Dunn, 15 N. Y. 498, rev'g 

113 ; Mallory v. West Shore R.R., 35 N. s. c. su6 nam. Dimon v. Bridges, 8 How. 

Y. Supr. Ct. 174 ; Morgan v. Martin, 32 16. 

Mo. 438 ; contra, National Bank v. Peck, ' Mallory v. The West Shore Hudson 

8 Kans. 8. River R.R. Co., 35 N. Y. Sup.-(3 J. & S.) 

' Capehart v. Dettrick, 91 N. C. 344 ; 174. 

Howell V. Western R.R. Co., 94 U. S. " Holden v. Gilbert, 7 Paige, 208. 
463. 



§ 231.] TIME FOE PAYMENT OP MOETGAGE DEBT. 157 

The mere production of tlie bond and mortgage, from whicli it 
appears that more than the stipulated time has expired since the in- 
stalment of interest became due and default was made thereon, is 
suflScient prima facie to entitle the mortgagee to judgment for the 
whole amount of principal and interest.' 

Unless so required by the terms of the bond and mortgage, it is 
not necessary to give the mortgagor notice of an intention to exercise 
an option to make the whole indebtedness due on failure to pay in- 
terest." 

§ 231. Place where interest must be paid. — Payment of inter- 
est must be made to the creditor himself, or to some person author- 
ized by him to receive it, and the creditor may require it to be paid 
to him at any place vrithin the State.' 

In the absence of any fraud or trick on the part of the mortgagee, 
it is no excuse for the mortgagor that he could not find the mortgagee 
in season to make payment." But if the mortgagee has been guilty 
of any fraud or oppressive conduct, the court will not allow him to 
profit by his own wrong, and will stay his proceedings." 

In general a debtor is bound, if no place of payment is specified in 
the contract, to seek the creditor and make payment to him person- 
ally. But this rule is subject to the exception "that if the creditor is 
out of the State when payment is to be made, the debtor is not 
obliged to follow him, but readiness to pay within the State in that 
case will be as effectual as actual payment to save a forfeiture. It 
may perhaps be that, although a' creditor is absent from the State 
when a payment is due, if he has a house therein where he resides, it 
is the duty of the debtor to tender the money there, or otherwise his 
obligation is not discharged. However this may be as a general rule, 
no such duty rests upon a mortgagor, and he is not obliged to part 
with his money to a third person without satisfactory evidence of his 



' Sowarby v. Russell, 6 Rob. 322 ; 4 ' Gnissy . v. Schneider, 50 How. 134, 

Abb. N. S. 238. affi'd 55 How. 188. 

' Howard v. Farley, 3 Robt. 599 ; ^ Bennett v. Stevenson, 53 N. Y. 508 ; 

Hunt V. Keech, 3 Abb. Pr. 204 ; Hood- Asendorf v. Meyer, 8 Daly, 278 ; Dwight 

less V. Reid, 112 111. 105 ; Marston v. Brit- v. Webster, 32 Barb. 47 ; s. c. 19 How. 

tenham, 76 Id. 611 ; Loan & Trust Co. 349 ; 10 Abb. 128 ; contra, Noyes v. 

V. Munson, 60 Id. 371 ; Buchanan v. Clark, 7 Paige, 179. 

Life Ins. Co., 96 Ind. 510; Young v. ^Ferris v. Ferris, 16 How. 103; 28 

McLean, 63 N. C. 576 ; contra. Dean v. Barb. 29, 32 ; Western Bank v. Sher- 

Applegarth, 65 Cal. 391. wood, 29 Barb.-383 ; Broderick v. Smith 

15 How. 434 ; 26 Barb. 539. 



158 MORTGAGES OP EEAL PBOPEETY. [§§232-233. 

authority. If the mortgagee desires that the interest should be paid 
to any agent of his within the State, he should notify the mortgagor 
that such agent is entitled to receive it, and if he leaves the State 
without doing so, the mortgagor is not obliged to tender the money 
at his residence, and failure to do so will not operate to make a mort- 
gage due, under a default clause.' 

"Where an attorney, authorized to receive payment, wrote to the 
debtor requiring payment to be made to him at his office at a time 
named, and then absented himself therefrom, leaving a boy in charge, 
a tender to the boy was held sufficient to save costs." 

§ 233. Excusing default. — ^Wbere the plaintiff, an assignee of 
the mortgage, colluded with his assignor to prevent the mortgagor 
from ascertaining who was then the owner of the mortgage, and thus 
prevented him from making payment to the right person within the 
time fixed by the condition, a stay of proceedings was ordered by the 
court on the ground that, under such circumstances, it was inequitable 
to permit the assignee to take advantage of the breach of the con- 
dition.' 

Mere negligence of the mortgagor, or forgetfulness as to the place 
or person to whom payment is to be made, will not excuse non-pay- 
ment or prevent the whole amount of the debt from becoming due 
pursuant to the terms of the mortgage because of such default.' 

The court has no more power to relieve a party from the effect of 
a " default clause " in a mortgage where the default complained of is 
the non-payment of a tax imposed on the mortgaged premises, than 
it would have if the default were in non-payment of an instalment of 
interest.' 

The fact that the mortgaged estate belongs to a mere surety, as to 
a wife, while the debt was the husband's, can make no difference, for 
when the whole debt becomes due the court has no power to stay 
proceedings on payment of mere interest and costs.' 

§ 233. Practice when default is excusable. — ^Wten the mort- 
gagor has a valid excuse for not paying interest in time, he cannot 
pay the money into court on an ex parte order. The proper practice 

1 Hale V. Patton, 6o N. Y. 233 ; Task- * Spring v. Fisk, 21 N. J. Eq. 175. 

er V. Bartlett, 5 Cush. 359 ; Houbie v. " O'Connor v. Shipman, 48 How. 126 ; 

Volkening, 49 How. i6g. Stanclifts v. Norton, 11 Kans. 218 ; Sharp 

" Kirton v. Braithwaith, i M. & W. v. Barker, Id. 381. 

3io;Grussyv.Schneider,5oHow.i34,i37. 'Hale v. Gouverneur, 4 Edw. 207; 

' Noyes v. Clark, 7 Paige, 179. Claflin v. Reese, 54 Iowa, 544. 



§ 234.] TIME FOE PAYMENT OF MOETGAGE DEBT. 159 

is to offer to pay the amount to tlie plaintiff, and, on his refusing to 
receive it, to apply to the court, upon papers excusing the default, 
for an order staying proceedings in the action.' In a proper case, and 
uppn imposing suitable terms, an application of this kind will be en- 
tertained, thoiigh the motion be not made until the action to foreclose 
is at issue.' 

§ 234. When default of payment of interest is waived. — If the 
mortgage shall have become due by operation of the agreement rela- 
tive to prompt payment of interest, an unconditional payment of 
interest will waive the default and revive the term of credit.' But if 
the mortgagee shall accept payment of an instalment of principal or 
interest larger than the interest in default, he will not thereby waive 
his right to insist upon the payment of the balance.^ 

Where, after a default had occurred in payment of interest, the 
mortgagor and mortgagee entered into an agreement to forgive the 
default on the performance by the mortgagor of certain conditions, 
it was held that, in the absence of full performance of such conditions, 
the mortgagee's right to insist upon the default still remained, even 
though payment of interest, which was one of the conditions, had 
been made and accepted." 

The right to insist that the principal has become due is not waived 
by the commencement of an action to foreclose for non-payment of 
interest, and upon the expiration of the time stipulated in the interest 
clause, a supplemental complaint may be filed for the collection of 
the principal.' 

' Thurston v. Marsh, 5 Abb. 389 ; s. v. Sheldon, 5 Cow. 448 ; Lawson v. Bar- 

c. 14 How. 572. ron, 18 Hun, 414. 

' Lynch v. Cunningham, 6 Abb. 94 ; * Malcolm v. Allen, 49 N. Y. 448 ; 

Asendorf v. Meyer, 8 Daly, 278. Rubens v. Prindle, 44 Barb. 336. 

* Malcolm v. Allen, 49 N. Y. 448 ; ' Odell v. Hoyt, 73 N. Y. 343. 

Jackson v. Allen, 3 Cow. 220 ; Jackson " Malcolm v. Allen, 49 N. Y. 448. 



CHAPTER VIII. 

EIGHTS OF • MORTGAGEE IS POSSESSION, AND ACCOTJNTrPTG 
BETWEEN MOETGAGOE AND MORTGAGEE. 



RIGHTS OF MORTGAGEE IN POSSESSION. 

§235. Right to retain possession. 

236. Nature of mortgagee's right of pos- 

session. 

237. Appointment of a receiver against 

mortgagee in possession. 

238. How a mortgagee may obtain pos- 

session. 

239. Apartywhoislawfullyinpossession. 

240. Examples of lawful possession. 

241. Further examples. 

242. Further examples. 

243. Right to acquire an adverse title. 

244. Foreclosure by mortgagee in pos- 

session. 

ACCOUNTING BETWEEN MORTGAGOR AND 
MORTGAGEE. 

245. Liability of mortgagee to account 

for rents and profits. 

246. Principles. 

247. In the absence of evidence of fraud 

or negligence. 
Z48. A person who occupies the legal 
position of a mortgagee. 



§ 249. The liability of the mortgagee to 
account commences. 

250. Where one religious corporation 

conveyed its church property. 

251. A mortgagee in possession owes 

duties to junior lienors, 

252. Holding as mortgagee. 

253- Right of amortgagee in possession 
to make repairs. 

254. The same rule. 

255. Exceptions. 

256. In cases where a mortgagee is not 

compensated. 

257. Counsel fees. 

258. Compensation for services in talj- 

ing charge of estate. 

259. Rule in this State. 

260. Accounting between mortgagor 

and mortgagee. 

261. Money paid for taxes, assessments, 

and other charges. 

262. An assignment. 

263. Purchase at tax sale. 

264. Insurance premiums. 



EIGHTS OF MOETGAGEE IN POSSESSION. 

§ 235. Right to retain possession. — Formerly the mortgagee 
could maintain ejectment after a default, but this remedy was taken 
away by the Eevised Statutes.' If, however, the mortgagee obtains 
possession without force, by consent ' of the mortgagor or by legal 
proceedings, or in any other legal mode, he is entitled, as well since 
as before the statute, to hold it against the mortgagor until his debt is 
paid out of the rents and profits or otherwise.' The question as to 

'2 R. S. 312, § 57 ; Code, § 1498. v. Spence, 20 Wend. 260; Fox v. Lipe, 

° Roberts V. Sutherlin, 4 0reg. 219. 24 Wend. 164; Casey v. Buttolph, 12 

* Van Duyne v. Thayre, 14 Wend. 233; Barb. 637 ; St. John v. Bumpstead, 17 

Phyfe v. Riley, 15 Wend. 248 ; Watson Barb. 100; Munrov. Merchant, 26 Barb. 



§ 236.] EIGHTS OF MOEXaAGEE IN POSSESSION. 161 

whether a mortgage debt has been paid by a receipt of rents and 
profits, cannot be passed upon in an action of ejectment, for the 
reason that the application of such rents and profits is not made by 
the law, but upon equitable principles and in equitable actions only.' 

§ 236. Nature of mortgagee's right of possession. — The fact 
that, since the Revised Statutes, a mortgagee cannot maintain eject- 
ment against the mortgagor, and that even since those statutes the 
mortgagee, being in possession, may retain it until the debt is paid, 
presents no anomaly or inconsistency in the law. The mortgagee's 
right to bring ejectment, or, being in possession, to defend himself 
against an ejectment by the mortgagor, is but a right to recover or 
retain possession of the pledge for the purpose of paying the debt. 
Such a right is but the incident of the debt, and has no relation to a 
title or estate in the lands. Any contract for the possession of lands, 
however transient or limited, will carry the right to recover that pos- 
session ; and such was deemed to be the nature and construction of a 
mortgage, it being considered that the parties intended the possession 
of the thing hypothecated should go with the contract. Ejectment 
was not, in fact, a real action at the common law. That remedy, in 
its origin, was only to recover possession according to some temporary 
right ; and it was only by the use of fictions that the title was at 
length allowed to be brought into controversy. When the legisla- 
ture, by express enactment, denied this remedy to mortgagees, they 
undoubtedly supposed they had swept away the only remaining vestige 
of the ancient rule of the common law which regarded a mortgage 
as a conveyance of the freehold ; yet there is nothing inconsistent or 
anomalous in allowing the possession, once acquired for tlie purpose 
of satisfying the mortgage debt, to be retained until that purpose is 
accomphshed. When that purpose is attained, the possessory right 
instantly ceases, and the title is, as before, in the mortgagor, without 



383 ; Winslow v. McCall, 32 Barb. 241 ; rell, 20 Wis. 42 ; Wells v. Rice, 34 Ark. 

Bolton V. Brewster, 32 Barb. 389 ; Sah- 346 ; Madison Avenue Baptist Church 

ler V. Signer, 44 Barb. 606 ; Randall v. v. Oliver Street Baptist Church, 73 N. 

Raab, 2 Abb. 307 ; Fogal v. Pirro, 17 Y. 82 ; Russell v. Ely, 2 Black (U. S.) 

Abb. 113; s. c. 10 Bosw. 100; Pell v. 575; Calhoun t. Lumpkin, 60 Tex. 

Ulmar, 18 N. Y. (4 Smith) 139 ; Chase v. 1S5. 

Peck, 21 N. Y. (7 Smith) 586 ; Hubbell v. > Ferris v. Houston, 74 Ala. 163 ; Dai- 

Moulson, 53 N. Y. 225 ; Deny. Wright, ley v. Abbott, 40 Ark. 275; Seaver v. 

2Hals.(7N. J. Law)i75; 11 Am. Dec. 546; Durant,39Vt. 103; Toomer v. Randolph, 

Johnson v. Sandhoff, 30 Minn. 197; Frink 60 Ala. 358 ; Slaughter v. Swift, 67 Ala, 

V. Le Roy, 49 Cal. 317 ; Hennesy v. Far- 494. 
11 



163 MORTGAGES Or REAL PEOPERTT. [§§ 237-238. 

a reconveyance. The notion ' that a mortgagee's possession, whether 
before or after default,- enlarges his estate, or in any respect changes 
the simple relation of debtor and creditor between him and his mort- 
gagor, rests upon no foundation. We may call it a just and lawful 
possession, Kke the possession of any other pledgee, but when its 
object is accompKshed, it is neither just nor lawful for an instant 
longer.' 

§ 237. Appointment of a receiver against mortgagee in pos- 
session. — It is, as a general rule, the settled doctrine of the courts 
of equity, that when anything is due to a mortgagee in possession, 
he will not be deprived of such possession by the appointment of a 
receiver, and the question of indebtedness will not be tried upon affi- 
davits. If the mortgagee will swear that a balance remains unpaid, 
a receiver wiU not be appointed. This is particularly so when the 
mortgagee is responsible, and is able to account for and pay any excess 
of rents and profits after the payment of his debt, or will give secu- 
rity to do so. If it appears that the mortgagee is irresponsible, or 
that the rents and profits will be in danger of loss, or that the mort- 
gagee is committing waste upon or materially injuring the prem- 
ises, a different rule will prevail, and a receiver will be appointed. 
The question is always one addressed to the sound discretion of the 
court in view of the particular facts and circumstances of the case 
presented.' 

§ 338. How a mortgagee may obtain possession. — The legal 
remedy of a mortgagee to obtain possession of the property by eject- 
ment being abolished, and the right of the mortgagee, whose mort- 
gage is due, to retain possession lawfully acquired having been 
repeatedly adjudged to still continue, it remains to be considered 
under what circumstances the possession of a mortgagee will be 
lawful, so as to entitle him to the benefits of this rule. 

Where a mortgage has been defectively foreclosed, by reason of 
some irregularity that leaves the rights of lienors junior to the mort- 
gage in full force, but the proceeding is regular so far as to bind the 
mortgagor who has the right of possession, the purchaser under the 
mortgage sale may lawfully obtain possession. Having obtained such 



' Per CoMSTOCK, Ch. J., in Kortright ^ BoUes v. Duff, 35 How. 481 ; Quinn v. 
V. Cady, 21 N. Y. 343, 364 ; Brinkman Briltain, 3 Edw. 314 ; Patten v. The Ac- 
\y. Jones, 44 Wis. 498. cessory Transit Co., 4 Abb. 237 ; Sea 

Ins. Co. V. Stebbins, 8 Paige, 565. 



§ 239.] EIGHTS 0¥ MOETGAGEE IN POSSESSION. 163 

possession, he will become the owner of the property as to all persons 
bound by the proceedings,' and as to all rights not so bound he will 
stand as an assignee of the mortgage in lawful possession under it." 
It is with reference to persons so circumstanced that questions as to 
the rights of mortgagees in possession now most frequently arise ; and 
it is obvious that in such cases, the right to possession having been 
determined by the proceeding to foreclose, it cannot again be liti- 
gated by proceedings on behalf of the owner of the equity whose 
rights have become finally barred. 

A mortgagee who takes possession without foreclosure and against 
the consent of the mortgagor, is a trespasser, and the remedy of 
the mortgagor is at law and not in equity, and the fact that he was a 
lunatic when possession was taken, does not give him a standing in a 
court of equity after the restoration of his reason. ° 

§ 239. A party who is lawfully in possession of the mortgaged 
premises for another purpose, as, for instance, under a contract to 
purchase them, will, by the purchase of overdue and unpaid mort- 
gages upon the premises, become substituted in the place of the 
mortgagees, and will be entitled by subrogation to the rights which 
the mortgagees woxdd have had if they had entered into possession ; * 
but one in wrongful possession of mortgaged premises cannot, by 
purchasing a mortgage upon which no default has occurred, acquire 
a right to hold the land as mortgagee in possession." 

A purchaser upon, and in possession under, a foreclosure sale, void 
as against the owner of the equity of redemption, because he was not 
made a party to the foreclosure suit, does not stand in the position of 
mortgagee or assignee of the mortgage in possession, but as a stranger.* 
But if the owner of the equity of redemption consents that such pos- 

' Vanderkemp v. Shelton, 1 1 Paige, 28 ; 10 Ohio St. 339 ; Bigler v. Waller, 14 

Groff V. Morehouse, 51 N. Y. 503 ; Wet- Wall. 297. 
more v. Roberts, 10 How. 51. ' Endel v. Wall, 16 Fla. 786 ; Pfettz 

' Wing V. Field, 35 Hun, 617 ; Hart v. v. Pfettz, 14 Md. 376. 
Wandle, 50 N. Y. 381 ; Robinson v. * Madison Ave. Baptist Church v. 

Ryan, 25 N. Y. 320 ; Walsh v. Rutgers Baptist Church in Oliver Street, 2 Robt. 

Fire Ins. Co., 13 Abb. 33; Benedict v. 642. 

Gilman, 4 Paige, 58 ; Smith v. Gardner, ' Madison Ave. Baptist Church v. 

42 Barb. 356 ; Jackson v. Bowen, 7 Cow. Baptist Church in Oliver Street, ig Abb. 

13; Martin v. Fridley, 23 Minn. 13; 105 ; s. c. rev'd on other grounds, i Abb. 

Vroom v. Ditmas, 4 Paige, 526 ; John- N. S. 214 ; 30 How. 455 ; 3 Robt. 570. 
son V. Sandhofi, 30 Minn. 197 ; Holton * Shriver v. Shriver, 86 N. Y. 575 ; 

v. Bowman, 32 Minn. 191 ; Sloan v. Froth- Watson v. Spence, 20 Wend. 260. 
ingham, 72 Ala. 589 ; Childs v. Childs, 



164 MOKTGAG-ES OF REAL PEOPEETY. [§240. 

session be taken, the purchaser cannot thereafter be driven from pos- 
session without first paying the amount due upon the mortgage.' 

A mortgagee who enters as purchaser under a sale in foreclosure 
which is afterward set aside for an irregularity and fraud, has been 
held to be lawfully in possession as mortgagee.'' 

§ 240. Examples of lawful possession. — In MaMson Ave. Bap- 
tist Church V. Oliver Street BaptAst Church (73 IST. Y. 82, 94), Eael, 
J., uses the following language : " "While under our present law a 
mortgagee cannot bring ejectment to obtain possession of the mort- 
gaged premises, being lawfully in possession under a mortgage upon 
which some amount is due, he can retain such possession against the 
mortgagor until such amount is paid. It is ordinarily sufEcient that 
the mortgagee is lawfully in possession after default upon the mort- 
gage. The court will not then deprive him of the possession until 
the mortgage has been paid. The possession need not be given under 
the mortgage nor with a view thereto." In this case the defendant 
acquired possession under a conveyance of the property, which was 
sought to be set aside and declared to be void. It was held that the 
order authorizing the conveyance was void, the court having no juris- 
diction to grant it. The defendant had no title under the deed, which 
was determined to have no legal effect, but, inasmuch as it acquired 
possession by the consent of the plaintiff, it was declared to be enti- 
tled to remain in possession by virtue of a mortgage which it held 
until the amount due on that mortgage was satisfied. 

In Shields v. Lozea/r (34 N". J. Law 496 ; s. c. 3 Am. E. 256), the 
vendor of land received a purchase-money mortgage and remained in 
possession under a lease by the terms of which he covenanted to yield 
and surrender such possession at its expiration. The lease expired, 
and the mortgage became due on the same day, and it was held in an 
action of ejectment brought by the landlord, that the mortgagee was 
entitled to continue to hold the premises under the mortgage, the 
mortgage money not being paid, without first surrendering the prem- 
ises to his landlord, and that the tenant by an assertion of his rights 
as mortgagee did not violate the rule which estops him from disputing 
his landlord's title. 

In Niles v. Romford (1 Mich. 338 ; 51 Am. Dec. 95), a mort- 
gage was foreclosed under a power of sale, but the proceeding was 
irregular and did not bind' the mortgagor, whose tenant was in pos- 

' Wing V. Field, 35 Hun, 617. * Harper v. Ely, 70 IIL 581. 



§ 241.J EIGHTS OF MORTGAGEE IN POSSESSION. 165 

session. The purchaser under the foreclosure conveyed his title to 
such tenant, who claimed ownership against his landlord, the mort- 
gagor. In an action of ejectment brought by the mortgagor, it was 
held that while the deed did not convey the title, it operated to assign 
the mortgage, and that the tenant could lawfully purchase a valid 
mortgage and continue in possession under it against his landlord. 

§241. Further examples. — In Winslow v. McCall (32 Barb. 
241), a mortgage had been foreclosed by advertisement. The owner 
of the equity of redemption was in possession of the property by his 
tenant at the time of the sale in foreclosure, and although he was duly 
served with the requisite notice his tenant was not. After such sale 
he became the assignee of a mortgage which was past due, and the 
owner of which had not properly been served with notice of the fore- 
closure, and thereupon he claimed to be entitled to continue in pos- 
session as mortgagee. This claim was sustained by the court, 
Paekee, J., remarking : " Cornwall was then (when the mortgage 
became due) in possession — a possession legally acquired and of which 
he had never been divested. I think he is from that time to be 
deemed a mortgagee in possession. It is not necessary that he should 
have obtained possession as mortgagee either by consent of the mort- 
gagor or by legal proceedings. It is sufficient if he obtained posses- 
sion in some legal mode." 

Bolton V. Brewster (32 Barb. 289) was an action of ejectment to 
recover possession of a farm in Queens County The defendant 
claimed title under an executor's deed, and he also claimed a right to 
possession under a past due mortgage. The defendant's claim of 
title was not sustained, for the reason that the wiU had been proved 
before the surrogate of New York County, while the testator at the 
time of his death was an inhabitant of the city of Hudson, but the 
claim of the defendant to a right to retain possession under his mort- 
gage was sustained by the court. It will be noticed that the posses- 
sion was obtained from an executor, the will never having been 
proved, but the question as to whether the executor had any more 
right to give possession than he had to grant the title does not appear 
to have been considered. 

In Phyfe v. RUey (15 Wend. 248), the defendant being a mort- 
gagee entered into possession under a deed from the mortgagor, which 
was executed subsequent to the docketing of a judgment under which 
the plaintifE claimed title. The possession was held to have been law- 



166 MOBTGAGES OP EEAL PEOPEETY. [§ 242. 

fully acquired, and it was determined that the defendant could not be 
dispossessed in an action of ejectment until the mortgage had been paid.' 

In Fox V. Lipe (24 Wend. 164), a mortgage which contained no 
valid power of sale was foreclosed by a sale under the statute, and the 
mortgagee entered into possession. It was held that ejectment would 
not lie until the mortgage was paid. 

Yam Dv/yne v. Thayre (14 Wend. 233) was an action of eject- 
ment by a widow for dower, and the mortgagee was protected in his 
possession. It was alleged that the mortgagor, who was the husband 
of the plaintiff, " had either surrendered the possession of the prem- 
ises to the heirs of the mortgagee in extinguishment of the mort- 
gage or had abandoned the premises, and the heirs had entered under 
the mortgage." 

§ 243. Further examples. — Notwithstanding the fact that a 
mortgagee is now precluded from maintaining ejectment against the 
mortgagor, a tenant of the mortgagor is still permitted to attorn to a 
mortgagee after the mortgage has become forfeited," and it has been 
held that, after such attornment, the tenant can resist an action brought 
against him by the mortgagor for rent." It would therefore seem 
that one lawful way for a mortgagee to acquire possession of the prop- 
erty would be to persuade the tenant of the mortgagor to attorn to him. 

Gross V. Wel/wood (90 N. Y. 638) was an action of ejectment. The de- 
fendants claimed, through one Bergen, first as mortgagee in possession 
under a mortgage executed by the plaintiff, and second under a tax 
lease executed to Bergen. The court held that it rested upon the de- 
fendant to show that he had a right to the possession. The tax lease 
was void, and the defendant, at the trial, abandoned all claim under 
it. The evidence as to the possession by Bergen was conflicting. 
The court says : " It was therefore an issue which the jury alone could 
determine. It was for them to say whether Bergen was in fact in 
possession, and if so, the character of that possession, and whether 
lawfully acquired or not ; ' and as the verdict established that defend- 
ant's possession was not taken under the mortgage, plaintiffs were 
entitled to recover." 

In Howell v. Lemitt (95 N. T. 617 ; 29 Alb. L. J. 483), a mort- 
gage had been foreclosed and a title perfected thereunder pursuant to 

'See also Chase v. Peck, 2i N. Y. ^CitingTrimin v. Marsh, 54 N. Y. 599; 

581. 13 Am. R. 623 ; Madison Avenue Church 

' I R. S. 744, § 3 ; I Edw. St. 696, § 3. v. Oliver Street Baptist Church, 73 N. 

^ Tones V. Clark, 20 Johns. 51. Y. 94. 



§ 243.] EIGHTS OF MOETGA.GEE IK POSSESSION. 167 

which and by means of a writ of assistance possession was acquired 
by the purchaser. The summons had been attempted to be served by 
publication upon the owner of the equity of redemption, but this was 
unavailing, for the reason that the defendant was dead, though this fact 
was not known to the plaintiff. An action of ejectment was brought 
by the children of the owner of the equity and was resisted by the 
defendants, .who were grantees of the purchaser at the foreclosure 
sale, who claimed the position of mortgagees in possession. The 
court said : " In most of the cases which have upheld the right of the 
mortgagee (to retain possession) his possession was obtained with the 
consent, express or implied, of the owner of the land, although in 
some of them the mode of acquiring possession did not distinctly ap' 
pear, and in many the rule is stated quite broadly and with little of 
restriction or limitation. It is scarcely necessary to review the author- 
ities and consider them in detail, for none of them have ever gone 
so far as to hold that a possession of the mortgage, acquired either 
by force or fraud, against the will and consent of the rightful owner, 
and without even color of lawful authority as it respects such owner 
and amounting only to a pure trespass, was sufficient to defend an 
action of ejectment. The possession requisite for such a defense 
must have about it at least some basis of right as against the owner 
evicted. Often his assent may be inferred from slight circumstances, 
but the right cannot be founded upon an absolute wrong. To hold 
that one who has merely a Hen and but an equitable right can get a legal 
one by the commission of a trespass, would be neither logical nor just." ' 

A purchaser under the foreclosure of a junior mortgage, in which 
the wife of the mortgagor did not join, may purchase a prior mort- 
gage in which the wife did join, and defend his possession under it 
against the widow's claim for dower until such mortgage is paid." 

§ 243. Right to acquire an adverse title. — The relation between 
the mortgagee and the mortgagor, or his grantee, is not one of trust 
or confidence, nor has the mortgagee any duty to perform which in- 
capacitates him from purchasing an outstanding title thereto. Neither 
does any duty to protect the equity of redemption against a sale 
thereof, arise because the mortgagee is in possession ; nor is any power, 
in fact, conferred upon the mortgagee for that purpose.' 



' See also Dunning v. Leavitt, 85 N. ' McMahon v. Russell, 17 Fla. 698. 
Y. 30, rev'g 20 Hun, 178. Article in 26 ' Kirkwood v. Thompson, 2 De G. J. 
Alb. L. J. 526 ; 27 Id. 6. & S. 613 ; Clark v. Bush, 3 Cow. 151 ; 



168 MORTGAGES OF REAL PEOPEETT. [§ 244. 

A mortgagee in possession may, therefore, cause the premises to be 
sold under an execution in his favor against the mortgagor, and be- 
come the purchaser at such sale, and after the purchase is consum- 
mated, he may set up the title thus acquired against the claim of the 
mortgagee to redeem.' 

In a very limited sense, a mortgagee may be said to be a trustee. 
There may be a duty resting upon a mortgagee in possession to dis- 
charge a particular claim against the land. If in such a case he omits 
to do it, and allows the land to be sold on such a claim, and becomes 
the purchaser, he would hold the title in trust for the mortgagor. A 
mortgagee in possession is allowed, and it may be his duty to pay 
taxes on the land out of the rents and profits. If he suffers the land 
to be sold for taxes in violation of his duty, and purchases on the 
sale, he would, upon general principles, be deemed to hold the title 
as trustee. So, if a mortgagee is allowed to take possession, and 
undertakes to pay the interest on other liens out of the rents and 
profits, and fails to do so, he could not purchase the land for his own 
benefit in hostility to the mortgagor on foreclosure of an incumbrance 
for non-payment of interest which he was bound to pay.' 

§ 244. Foreclosure by mortgagee in possession. — There is 
nothing in the position or legal claims of a mortgagee in possession 
which will restrain him from bringing an action to foreclose his mort- 
gage and extinguish the rights of the mortgagor by a sale of the 
property. And where an action of foreclosure was discontinued 
upon a stipulation being made by which the amount due upon the 
mortgage was reduced, and the mortgagee was given substantially 
the same rights which the law confers upon a mortgagee in posses- 
sion, but no time was specified within which the mortgagee could 
insist upon the immediate payment of the amount secured by the 
mortgage, it was held that the mortgagee was not required to wait 
more than three years, it. being shown that the revenue from the 
property did not suffice to reduce the amount of the lien.^ 



see also Parkinson v. Hanbury, i Drew Ala. 92 ; Hurmdenv. Roberts, 6 Fla. 711; 

& Sm. 143; s. c. 2 De G. J. & S. 450; L. Wordier v. Busch, 43 Mo. 231. 

R. 2 H. L. Cases, i. ^Per Andrews, J., in Ten Eyck v. 

' Trimm v. Marsh, 54 N. Y. 599 ; Ten Craig, 62 N. Y. 406, 422 ; Schenck v. 

Eyck V. Craig, 2 Hun, 452 ; s. c. 5 N. Y. Kelley, 88 Ind. 444. 

Sup. (T. & C.) 65 ; s. c. affi'd 62 N. Y. ^ Union Dime Savings Institution v. 

406 ; King v. State M. F. Ins. Co., 7 Quinn, 63 How. 211. 
Gush. 7 ; Walthall, Ex'r, v. Rines, 34 



§§ 245-246.] ACCOUNTING. 169 



ACCOTTNTrNG BETWEEN MOETGAGOE AND MORTGAGEE. 

§ 245. Liability of a mortgagee to account for rents and prof- 
its. — A mortgagee in possession should endeavor to make the prem- 
ises produce a fair rental. His duty is said to be that of a provident I 
owner,' and, while he is not in general liable for imaginary profits 
which he did not receive, but only for actual rent, he must answer 
for his fraud or wilful neglect. He may not turn out a sufficient 
tenant, or refuse a higher rent, without becoming thereby responsible 
for the rent lost." If by reason of the fraud or neglect of the mort- 
gagee the premises are not rented out at a fair cash rent, the mort- 
gagee may be charged such rent as might have been received with 
reasonable care and prudence.' A mortgagee in possession is to take 
the fair rents and profits, but he is not bound to engage in any specu- 
lations for the benefit of his mortgagor, and is only liable for wilful 
default." He is liable to account to the mortgagor for all rents, issues, 
and profits received by him, and for all waste and destruction of the 
premises, and he must deduct the allowance for these matters from 
the amount due on the mortgage." 

An agreement between the mortgagor and mortgagee, when the 
mortgage debt bears interest, that the latter shall use and occupy the 
mortgaged premises without being liable for rents and profits, unless 
supported by a consideration other than the forbearance to foreclose 
the mortgage, is not such a vahd contract as will bar the right to an 
action for them.' 

§ 246. Principles. — The principles upon which a mortgagee who 
takes possession of the mortgaged premises without a regular fore- 
closure is to account, are substantially the same as those which the 
Revised Statutes have adopted in relation to the damages of a dow- 
ress in cases where her dower has been withheld from her after it 
was demanded : that is, the mortgagee is to be charged with the net 
profits which he has received, or which he might have received with- 



' Shaeffer v. Chambers, 2 Halst. Ch. Morts. 492 ; Wash. Real Prop. vol. i, 

(N. J.) 548 ; 47 Am. Dec. 211. p. 578 ; Walsh v. Rutgers Fire Ins. Co., 

« Coote on Morts. 557; Powell on 13 Abb. 33 ; Booth v. Steam Packet Co., 

Morts. 949 a ; Wash. Real Prop, vol. i, 68 Md. 39. 

p. 578 ; Fisher on Morts. 492. ' Onderdonk v. Gray, 19 N. J. Eq. 65 ; 

' Van Buren v. Olmstead, 5 Paige, 8 ; Greer v. Turner, 36 Ark. 17 ; Daniel v. 

Quinn v. Brittain, 3 Edw. 314. Coker, 70 Ala. 260. 

* Powell on Morts. 950; Fisher on ' Anderson v. Lauterman, 27 Ohio, 104. 



170 MORTGAGES OP EEAL PEOPERTT. [§§ 247-248. 

out any negligence on his part, after payment of taxes and ordinary 
repairs and other expenses of that character ; but without charging 
him with the increased rents and profits arising from any permanent 
improvements made by him.' 

It is the duty of the mortgagor, if he have the opportunity, to give 
notice to the mortgagee that the estate can be made more productive, 
and to assist him in making it so. If he omits to do this, and hes by 
making no objection to the mortgagee's proceedings, this fact will 
weigh strongly against him if he afterward attempts to charge the 
mortgagee with mismanagement.' 

And the burden of proving the receipt of rents and profits rests 
upon the mortgagor. If he does not introduce such evidence, it does 
not lie with him afterward to complain of the decree." 

§ 247. In the absence of evidence of fraud or negligence the 
mortgagee can only be charged with rents and profits actually received 
by him, and not with the supposed value of the property.' But if 
fraud or gross neglect is shown, he will be charged with what he might 
have received if he had been honest and diligent.' It has even been 
held that the burden rests upon the mortgagee to prove his diligence 
and good faith where the property has been unproductive, in order 
to relieve himself from a charge for rental value.' 

The mere fact that after the mortgagee's taking possession a tene- 
ment was left unoccupied, in the absence of proof that the mortgagee 
was negligent in the matter of procuring a tenant, will not charge 
the mortgagee with its rental value.' 

It has been said that a mortgagee in possession should be charged 
with rents, according to the equities of the case, upon the basis either 
of gross receipts, net receipts, or rental value.' 

§ 248. A person who occupies the legal position of a mort- 
gagee, under circumstances which lead him to believe that he is the 
owner of the property, is only to be charged with what he actually 
receives, and not for what he might have received." 

1 Per Chancellor Walworth, in Bell ' Moshier v. Norton, lOO 111. 63. 

V. The Mayor, etc., of New York, 10 ^Shaeffer v. Chambers, 6 N. J. Eq. 

Paige, 73 ; citing Moore v. Cable, 1 548. 

Johns. Ch. 385 ; 1 R. S. 743, § 21. 'Donohue v. Chase, 139 Mass. 407. 

^ Fisher on Morts. 491. ' Worthington v. Wilmot, 59 Miss. 608. 

' Hards v. Burton, 79 III. 504. "Morris v. Budlong, 78 N. Y. 543, 556, 

* Hogan V. Stone, i Ala. 496 ; 35 Am. rev'g 16 Hun, 570 ; Parkinson v. Han- 
Dec. 39 ; Gerrish v. Black, 104 Mass. bury, 2 L. R. i ; Barnard v. Jennison, 
400 ; Clark v. Finlan, 90 111. 245. 27 Mich. 230. 



§§249-251.] ACCOtJNTING. 171 

If instead of renting tlie property the mortgagee elects to occupy 
and enjoy it himself, he will be required to account on the basis of a 
fair rental ; such as might have been received with reasonable care 
and prudence,' independent of the question of the amount of net 
profits actually received by him therefrom.' But if the mortgagee 
has been unable to procure a tenant, and has caused the land to be 
tilled himself, he will be chargeable only with the net results, and it 
has been said to be his duty to make use of the property himself in 
such a case.' He is under no obligation to work the land himself if 
he can rent it." And he will not be charged anything if the use is 
worth nothing.' 

A mortgagee will not be charged interest on rents received by 
him ; he receives no compensation for his services, and this will be 
set off against interest." 

§ 349. The liability of the mortgagee to account commences 

when he first receives profits which ought to be applied in reduction 
of his claims. So, on a bill to redeem brought by the widow of a 
mortgagor, the mortgagee was required to account from the date of 
his entry into possession, and not merely from the time the plaintiff 
became a widow.' 

§ 350. Where one religious corporation conveyed its church 
property to another under an order which was void for jurisdictional 
defects and the grantee held mortgages which were valid hens, and 
on an accounting with respect to the amount due on such mortgages, 
it appeared that the defendant had paid out more than it had received 
of pew rents for the costs and expenses of maintaining religious ser- 
vices which were for the benefit of both parties, it was held that the 
defendant should not be charged with the rents and profits, but should 
bear all expenses while the property was in its possession, and should 
lose the interest accruing during that period on the amount of its de- 
mands.' I 

§ 251. A mortgagee in possession owes duties to junior lienors 
as well as to the mortgagor,' and a subsequent mortgagee -has a right 

1 Van Buren v. Olmstead, 5 Paige, 8. ' Peugh v. Davis, 2 Mackey (D. C.) 23. 

' Barnett v. Nelson, 54 Iowa, 41 ; 37 * Breckenridge v. Brooks, 2 A. K. 

Am. R. 183 ; Sanders v. Wilson, 34 Vt. Marsh, 335 ; 12 Am. Dec. 401. 

318. ' Dela V. Stanwood, 62 Me. 574. 

'Shaeffer v. Chambers, 2 Halst. (N.J.) ° Madison Ave. Bap. Church v. Bap- 

Eq. 548 ; 47 Am. Dec. 211. tist Church in Oliver St., 73 N. Y. 82, 

* Hidden v. Jordan, 28 Gal. 301. modifying 41 N. Y. Supr. (g J. &S.) 369. 



172 MOKTGAaES Or REAL PROPERTY. [§ 252. 

to compel him to make proper deductions for rents and profits re- 
ceived by him.' And a senior mortgagee in possession, with knowl- 
edge of a junior mortgage, who permits the mortgagor to receive the 
profits of the property to the prejudice of the junior mortgagee, will 
be postponed to the junior mortgagee for that amount." 

So, where a mortgagee having taken possession, rented the prop- 
erty to the widow and adult heirs of the mortgagor and then omitted 
to collect the rents, it was held on a bill to redeem in which the in- 
fant heirs were included as parties, that the mortgagee must, as to 
them, account for the rents as if he had collected them.^ 

§ 252. Holding as mortgagee. — A mortgagee in possession after 
condition broken with the assent of the mortgagor, is presumed, until 
the contrary is shown, to occupy in his character of mortgagee ; and 
as such is liable to account for rents and profits. Thus, where a ten- 
ant in possession purchased outstanding past due mortgages on the 
premises, and after the expiration of his term continued in possession 
and in receipt of rents and profits, such continued occupancy, until 
the contrary is shown, is presumed to be under the mortgage and not 
as a tenant holding over.' And a mortgagee who also had a claim to 
a lien under a mechanic's lien statute, which was legally invalid, who 
was put into possession by the mortgagor under an agreement that 
the rents and profits should apply upon the latter lien, was held, as 
between himself and the creditors of the mortgagor holding junior 
liens, to be in possession as mortgagee, and the rents were deducted 
from the mortgage debt.' 

But a mortgagee who takes a conveyance from the mortgagor and 
enters thereunder, does so under his title, and not as the holder of a 
mere lien, and is not accountable as such to the holder of a junior in- 
cumbrance, as against whom his mortgage may be enforced for its 
full amount." 

A grantee under a deed absolute on its face, but made as security 
for a debt, is a mortgagee simply, and as such must account for rents 
and for proceeds of sales of the property with interest, and for waste.' 



'Moore v. Degraw, i Halst. (N.J.) 'Anderson v. Louterman, 27 Ohio, 104. 

Ch. 346. ' Hilliard v. Allen, 4 Cush. 532. 

^ Hitchcock V. Fortier, 65 111. 239 ; ' Rogers v. Herron, 92 111. 583. 

Demarest V. Berry, 16 N. J. Eq 481. 'Turner v. Wilkinson, 72 Ala. 361 ; 

^ Butts V. Broughton, 72 Ala. 294 ; Cooke v. Culbertson, 9 Nevada, 199 ; 

Dozier v. Mitchell, 65 Ala. 511 ; Barron Powell v. Williams, 14 Ala. 476 ; Mor- 

V. PaulUng, 38 Ala. 292. row v. Turney, 35 Ala. 131. 



§§ 253-254.J ACCOUNTiKG. 173 

§ 253. Right of a mortgagee in possession to make repairs. 

— The mortgagee is entitled to be credited for moneys expended by 
him to keep the premises in necessary repair ;* but when he under- 
takes, without the consent of the mortgagor, to make improvements 
on the property, though they may be of a beneficial and permanent 
character, he does it at his peril, and has no right to look to the mort- 
gagor for an allowance. It would be unjust that he should be at 
liberty to improve as he thought most beneficial to himself, and 
thereby perhaps deprive the mortgagor of the power of redeeming." 

In Moore v. Gahle (1 Johns. Ch. 385), it was held that the clear- 
ing of wild land did not constitute necessary repairs, and Chancellor 
Kent remarked that, " to make the allowance would be compelling 
the owner to have his lands cleared, and to pay for clearing them, 
whether he consented to it or not. The precedent would be liable to 
abuse, and would be increasing difficulties in the way of the right of 
redemption. Many a debtor may be able to redeem by refunding the 
debt and interest, but might not be able to redeem under the charge 
of paying for the beneficial improvements which the mortgagee had 
been able and willing to make." 

§ 254. The same rule was expressed by Denio, J., as follows :' 
"Where the conventional relation of mortgagor and mortgagee is 
shown and acknowledged between the parties, there is no reason why 
the latter should be allowed to obstruct the right of redemption by 
expending money upon improvements. He can at any time call upon 
the debtor, by suit of foreclosure, to elect whether he will pay the 
debt or incur an absolute forfeiture ; and if he is found making cost- 
ly improvements, there is good reason to suspect a design to avail 
himself of the present inability of the debtor to discharge the incum- 
brance in order to confirm his title to the estate by embarrassing the 
right of redemption. The general rule is therefore understood to be 
that upon taking the account in a suit for redemption against a mort- 
gagee in possession, he is to be charged with the rents and profits, and 
be allowed only for necessary reparations." * 

' Gillis V. Martin, 2 Devereux Eq. v. Smith, Saxton's N. J. Rep. 123; Cook 

(N. C.) 470 ; 25 Am. Dec. 729; Dewey v. Ottawa University, 14 Kans. 548; Mc- 

V. Brownell, 54 Vt. 441 ; 41 Am. R. 852; Cumber v. Oilman, 15 111. 381; Trust 

Hasford v. Johnson, 47 Ind. 479 ; Mc- Co. v. Fisher, 106 111. 189. 

Cumber V. Oilman, 15 111. 381 ; Adkins 'Mickles v. Dillaye, 17 N. Y. (3 Smith) 

V. Lewis, 5 Oreg. 292 ; Booth v. Packet 80. 

Co., 63 Md. 39. *See also Story's Eq. Jur. § 1016 b ; 4 

' Quin V, Brittain, Hoff. Ch. 354; Clark Kent's Com. 167. 



174 MOETGAGES OY REAL PROPEETT. [§§255-256. 

§ 255. Exceptions. — The rule refusing an allowance for perma- 
nent improvements to the mortgagee, is subject to some exceptions. 
Where valuable and permanent improvements have been made in 
good faith by a person standing upon the legal footing of a mort- 
gagee, but who supposed himself to have acquired the absolute title, 
as by a purchase under a foreclosure which was defective and failed to 
cut off a right of redemption, if the person entitled to redeem neglect 
to apprise the mortgagee of his error, and allow him to go on in ex- 
pending money upon the property, the value of the permanent im- 
provements will be allowed to the mortgagee upon redemption. The 
improvements, being made by the mortgagee in the belief that he was 
the owner of the property, and that belief to some extent having been 
induced by the person entitled to redeem, the person seeking relief at 
the hands of a court of equity, must do equity and pay for the benefits 
which he receives from the improvements.' 

So, where a title had been conveyed by the mortgagor to the mort- 
gagee, the latter was adjudged to be entitled to retain the property, as 
against a junior lien of which he had no notice, for the amount of his 
mortgage and valuable permanent improvements put by him upon the 
estate after the date of the grant." And where the instrument ad- 
judged to be a mortgage was an absolute deed, the equitable owner 
was required to pay for repairs and improvements, made on the faith 
of an absolute title, which enhanced the value of the property. ° 

§ 256. In cases where a mortgagee is not compensated for 
improvements, he is not charged with the profits received by him 
from such improvements.' But if a charge is made and allowed for 
the expense of improvements, the mortgagee is also chargeable with 
the increased rental resulting therefrom.' 

So, a mortgagor cannot charge a mortgagee in possession for waste 

' Mickles v. Dillaye, 17 N. Y. (3 Smith) MacArthur (D. C), 206 ; Spurgin v. 

80 ; Wetmore v. Roberts, 10 How. 51, Adamson, 62 Iowa, 661 ; Poole v. John- 

and cases cited; Fogalv. Pirro, i7Abb. son, 62 Iowa, 611; Morgan v. Walbridge, 

113 ; s. c. 10 Bosw. 100 ; Chalmers v. 56 Vt. 405. 

Wright, 5 Robt. 713 ; Benedict v. Gil- ^Troostv. Davis, 31 Ind. 34. But see 

man, 4 Paige, 58 ; Putnam v. Ritchie, 6 Catterlin v. Armstrong, loi Ind. 258. 

Paige, 390 ; Miner v. Beekman, 50 N. Y. ^ Harper's Appeal, 64 Pa. St. 315. 

337 ; Dougherty v. Colgan, 6 Gill & J. * Moore v. Cable, i Johns. Ch. 385 ; 

275 ; Hagthorp v. Hook, i Gill & J. Bell v. The Mayor, 10 Paige, 49 ; Clark 

270; Troost V. Davis, 31 Ind. 34; Roberts v. Smith, Saxt. (N.J.) 121, 138; Hop- 

V. Fleming, 53 III. 198 ; Harper's Ap- kins v. Stephenson, i J. J. Marsh, 341 ; 

peal, 64 Pa. St. 315 ; Cookes v. Culbert- Jones v. Fletcher, 42 Ark. 422. 

son, 9 Nev. 199; Eraser v. Prather, i 'Montgomery v. Chadwick, 7 Iowa, 114. 



§§ 257-258.] AccouNTmo. 175 

for clearing and cultivating the land, and also with the improved 
rent arising from such clearing ; though it has been said that he may 
do either at his election.' 

Claims for money disbursed in making repairs should be asserted 
before judgment in the action to foreclose or redeem, since they can- 
not be made charges on the land independent of such judgment.^ 

§ 257. Counsel fees. — A mortgagee of land in possession is en- 
titled to be allowed for reasonable counsel fees, paid in a proper 
endeavor to collect the rents and profits; and he is not liable for 
damages done to the estate, without his knowledge, by his tenant, 
provided the latter was one to whom the estate might properly be 
leased ; or for wood cut and used on the premises, for firewood and 
repairs, by such tenant.' 

§ 258. Compensation for services in taking charge of estate. 
— The English courts have always looked with jealousy at the de- 
mands of the mortgagee, beyond the payment of his debt. They 
have allowed the mortgagee to agree with the mortgagor for the ap- 
pointment of a receiver to be paid by the latter, but they have held 
that neither the mortgagee, nor his assignee or executors, can have 
any allowance for personal care or trouble in receiving the rents of 
the estate, notwithstanding an agreement with the mortgagor for that 
purpose.* As a general rule, they have imposed on the mortgagee 
the duty of collecting the rents himself, without compensation ; but 
they have allowed him to employ another person to do so at the ex- 
pense of the estate, when the nature of the property was such that 
great time and trouble would be sacrificed by personal receipt of the 
rents, so that a provident owner, whose time was of value, would 
probably have appointed a bailiff receiver.^ The reason given for 
refusing to allow the mortgagee for time and trouble spent in taking 
care of the estate is, that such an arrangement tends directly to facil- 
itate usury and oppression. So, where a mortgage provided that the 
mortgagee should be in receipt of the rents and have £60 a year for 
his trouble, and, after retaining this amount with the interest, should 



' Morrison v. McLeod, 2 Ired. Ch. * Moore v. Cable, i Johns. Ch. 385, 388 ; 

108. Fisher on Morts. 499 ; French v. Baron, 

' Dewey v. Brownell, 54 Vt. 441 ; 41 2 Atk. 120 ; Godfrey v. Watson, 3 Id. 

Am. R. 852. 518. 

' Hubbard v. Shaw, 94 Mass. (12 Allen) ' Fisher on Morts. 499 ; Coote on 

120 ; Blunt V. Syms, 40 Hun, 566 ; i N. Morts. 353, 557 ; Davis v. Dendy, 3 

Y. St. Reptr. 455. Mad. 170. 



176 MORTGAGES 01' REAL PEOPEETT. [§§ 259-260. 

pay the balance to the mortgagor, it was held that he was liable to a 
qui tam action for usury.' 

§ 259. Rule in this State. — In the other States the rule is similar 
to that adopted in England, in refusing the mortgagee compensation 
for his own services,'' but allowing him to charge as against the rent 
for the expense of collecting it where such expense was actually in- 
curred, and where the premises were so situated that the employing 
of an agent was a reasonable and a proper thing to do." 

It has been said that in this State there is no fixed rule applicable 
to all cases determining whether or not a mortgagee in possession is, 
upon an application of the mortgagor to redeem, entitled to commis- 
sions upon the amount received and expended by him, and that the 
decision of this question rests in the discretion of the court or referee 
trying the action. In one case commissions were refused to the 
mortgagee, and costs were also adjudged against liim. ISTo rule is 
suggested by which the discretion of the court is to be guided.* In a 
later case compensation was refused, and it was said that no commis- 
sions can be legally claimed or allowed.' 

In Massachusetts, when a mortgagee enters upon default for the 
purpose of foreclosure, the question as to commissions has arisen more 
frequently than in this State. In an action to redeem it has been 
held that the mortgagee in possession, having entered for breach of 
condition, is entitled to ordinary commissions, and, in special cases, to 
more.' A similar rule prevails in Connecticut.' 

The fact that the mortgagor consented to the appointment of an 
agent at a fixed compensation for a part of the time the mortgagee 
was in possession, has been held to be competent though not conclu- 
sive evidence that the continued employment of an agent at the same 
rate was proper.' 

§ 260. Accounting between mortgagor and mortgagee. — An 



1 Scott V. Brest, 2 Term R. 238. Ch. (Md.) 455 ; Harper v. Ely, 70 111. 
^ Eaton V. Simonds, 14 Pick. 98 ; Clark 581 ; Davis v. Dendy, 3 Mad. 170. 

V. Robins, 6 Dana, 350 ; Benham v. * Green v. Lamb, 24 Hun, 87. 
Rowe, 2 Cal. 387 ; Breckenridge v. ' Blunt v. Syms, 40 Hun, 5()6 ; i N. 

Brooks, 2 A. K. Marsh, 335 ; Clark v. Y. St. Reptr. 455. 

Smith, Saxt. (N. J.) 121 ; Elmer v. Lo- * Casenove v. Cutler, 4 Met. 246 ; 

per, 25 N. J. Eq. 475 ; Moore v. Cable, Adams v. Brown, 7 Cush. 220 ; Mon- 

I Johns. Ch. 385, 388. tague v. Boston & Alb. R.R. 124 Mass. 

2 Scarborough v. Stinson, 15 La. An. 242 ; Gerrish v. Black, 104 Mass. 400. 
665 ; Lowndes v. Chisholm, 2 McCord ' Waterman v. Curtis, 26 Conn. 241. 

' Casenove v. Cutler,. 4 Met. 246. 



§ 261.J ACCOUN-TING. 177 

account between the mortgagor and mortgagee as to the amount due 
upon the mortgage debt, may be required by any person obligated to 
pay that debt, or having any interest in or lien upon the mortgaged 
estate subordinate to the mortgage. Questions as to the amount due 
to the mortgagee can be raised in any Utigation in which the mort- 
gage is sought to be enforced or relief is asked against it. The 
methods for raising questions of account are pointed out in chapters 
of this work touching " Foreclosure " and " Redemption." 

§ 261. Money paid for taxes, assessments, and other charges. 
— A mortgagee, whether in or out of possession, who has paid taxes 
on the mortgaged premises in order to preserve his security, may 
charge such taxes in his account against the mortgagor, and recover 
them under the mortgage.' So, also, he may charge money used in 
paying a valid assessment for a pubhc improvement f or in paying 
rent on a perpetual lease in fee to prevent a re-entry and to preserve 
his security,' or in satisfying an execution upon a prior judgment.* 
If the mortgagee pays a tax or assessment which he is under no obli- 
gation to pay, he will be preferred, to the extent of the money thus 
paid, to prior incumbrancers whose liens the payment has served to 
protect.' 

The right of the mortgagee to protection for moneys disbursed by 
him in discharge of taxes and other prior liens on the property, de- 
pends upon equitable principles alone, and not upon the presence of 
a " tax clause " or other stipulation in the mortgage," though such a 
clause is valid.' 

Money paid by a mortgagee for taxes on other prior charges or 
liens on the estate is not chargeable against the estate apart from the 
mortgage, and is uncollectible when the mortgage is satisfied ; and, 
whether the amount paid is or is not included in the sum for which 



' Sidenberg v. Ely, 90 N. Y. 257 ; 43 v. Barker, Id. 381; Ring's Ex'r v. Wood- 
Am. R. 163 ; Marshall v. Davies, 78 N. ruff, 43 Ark. 469. 

Y. 414; Weed v. Hornby, 35 Hun, 580; ' Rapelye v. Prince, 4 Hill, 119 ; Dale 

Faure v. Winans, Hopk. Ch. 283 ; Burr v. McEvers, 2 Cow. 118 ; Brevoort v. 

V. Veeder, 3 Wend. 412 ; Eagle Fire Ins. Randolph, 7 How. 398. 

Co. V. Pell, 2 Edw. 631 ; Kortright v. ^ Robinson v. Ryan, 25 N. Y. 320. 

Cady, 23 Barb. 490 ; Robinson v. Ryan, * Silver Lake Bank v. North, 4 Johns. 

25 N. Y. 320 ; Wright v. Langley, 36 Ch. 370. 

111. 381 ; Mix V. Hotchkiss, 14 Conn. ' Cook v. Kraft, 3 Lans. 512 ; Davis 

32 ; Southard v. Dorrington, 10 Neb. v. Bean, 114 Mass. 360. 

122; Johnson v. Payne, 11 Neb. 269; * Sidenberg v. Ely, 90 N. Y. 257; 43 

Walton v. Hollywood, 47 Mich. 385 ; Am. R. 163. 

Stancliff v. Norton, 11 Kans. 218 ; Sharp ' Hamilton v. Jones, 62 Cal, 473. 

12 



178 MOETGAGES OF REAL PEOPERTT. [§§ 262-263. 

the mortgage is foreclosed, there can be no subsequent or separate 
proceeding against the mortgagor to enforce its payment.' 

A mortgagee in an invalid mortgage has been held to be entitled to 
a lien on the land for taxes paid by him." And as between the mort- 
gagor and mortgagee payments made in good faith by the mortgagee 
for taxes and assessments which proye to have been illegally assessed, 
may be included in the foreclosure decree.' 

§ 262. An assignment to the mortgagee of the charge or hen 
paid by him, is neither necessary nor proper if it is desired to collect 
the amount paid, under the mortgage. By a purchase at a tax sale, 
the mortgagee may acquire a lien which he will be allowed to enforce, 
but he will not be able to enforce a claim for the amount thus paid in 
his character as mortgagee.* He will have the rights of a purchaser 
at a tax sale, and he will also be a mortgagee ; thus being the holder 
of two different demands, each secured by its appropriate remedies. 
But it has been held that, if he will waive his tax title, he may add 
the amount paid for it to his claim as mortgagee.' 

The owner of an undivided half interest in real estate who has 
mortgaged his half interest is liable only for the tax on his share, and 
cannot be made to pay the whole tax by the mortgagee who pays the 
same to protect his Ken." 

§ 263. Purchase at tax sale. — If a mortgagee in possession be in 
the receipt of rents or profits, it is not only his right but his duty to 
use them in the preservation of the estate by paying taxes or other incum- 
brances prior to the mortgage. If he suffers the land to be sold for 
taxes, in violatjon of his duty, and purchases on the sale, he would, upon 
general principles, be deemed to hold the title as trustee.' He cannot 
set up against the mortgagor a tax title acquired while thus in possession. ' 

On a like principle, neither the mortgagor nor his grantee in pos- 
session can acquire any right hostile to the mortgage by paying taxes 
on the mortgaged premises, since it is his duty to make such pay- 
ment." And a payment made in the form of a purchase on a sale for 
such tax has no greater effect." 

'Vincent v. Moore, 51 Mich. 618; * Strong v. Burdick, 32 Iowa, 630; 

Young V. Brand, 15 Neb. 601 ; McCros- Baker v. Clark, 52 Mich. 22. 

sen V. Harris, 10 Pacif. Rep. (Kans.) 583. * Weed v. Hornby, 35 Hun, 580. 

' Aultman v. Jenkins, 19 Neb. 209. ' Per Andrews, J., in Ten Eyck v. 

'Bates V. People's, etc., Asso'n, 42 Craig, 62 N. Y. 406, 422. 

Ohio St. 655. 'Schenck v. Kelley, 88 Ind. 444. 

* Williams V. Townsend, 31 N. Y. 411; ° Medley v. Elliott, 62 111. 532. 

Fiacre v. Chapman, 32 N. J. Eq. 463. "Voris v. Thomas, 12 111. 442. 



§ 264.] ACCOUNTING-. 179 

§ "264. Insurance premiums. — As a general rule, if no provision 
is made in the mortgage for insuring the premises, a mortgagee has 
no right to charge in his account for premiums paid for effecting in- 
surance upon the mortgaged premises.' In 8lee v. Momhattam, Co. 
(1 Paige, 81), where the mortgagees had long been in possession of 
the premises, the court allowed them to charge for insurance pre- 
miums " under the peculiar circumstances of the case." 

Questions of insurance are further considered in Chapter XIV. of 
this work. 

' Faure v. Winans, Hopk. Ch. 283 ; Brown, 2 Cush. 412 ; Booth v. Packet 
Fisher on Morts. 493, 494 ; Bellamy v. Co., 63 Md. 39. 
Brickenden, 2 J. & H. 137 ; White v. 



CHAPTEE IX. 



THE PEIMAET FUND FOE THE PAYMENT OP MOETG-AGES, AND 
PEIOEITIES INDEPENDENT OF THE EEOOEDING ACTS. 



THE PRIMARY FUND FOR THE PAYMENT 
OF MORTGAGES. 

§265. Statute. 

266. Rule prior to Revised Statutes. 

267. Application of the statute. 

268. Limitations of the rule. 

269. The sole object of the statute. 

270. Mortgages of leaseholds. 

271. Charging parcels of land in inverse 

order of alienation. 

272. Examples. 

273. Land conveyed expressly subject 

to mortgage debt. 

274. Where parcels are expressly 

charged with mortgage. 

275. Land of one person mortgaged for 

debt of another. 

276. Release from primary liability. 

277. Subrogation. 

278. Junior liens protected. 

279. Controlling remedy of mortgagee. 

280. Sale made in one parcel. 

PRIORITIES INDEPENDENT OF THE RE- 
CORDING ACTS. 

281. Priority of mortgages as controlled 

by agreements of parties. 



§ 282. Examples. 

283. Conflicting claims to priority. 

284. Priority of purchase-money mort- 

gages. 

285. Examples. 

286. What is a purchase-money mort- 

gage. 

287. Conflicts between mortgages given 

by purchasers at time of pur- 
chase. 

Mortgages for purchase money 
given after delivery of deed. 

No priority for money paid for im- 
provements. 
2go. Priority of mortgages over judg- 
ments. 

Reforming mortgages. 

The doctrine of tacking. 

Several debts secured by the same 
mortgage. 

294. Assignment of part of debt secured 

by mortgage. 

295. Priority awarded to defeat fraud. 

296. Agreements for priority where there 

are intermediate liens. 

297. Assignees bound by equities con- 

trolling priority. 



288. 



289. 



291. 
292. 
293- 



THE FBTIVTARY FUKD FOE THE PAYMENT OF MOETGAGES. 

§ 265. Statute. — ^It is provided by statute that " whenever any 
real estate, subject to a mortgage executed by any ancestor or testator, 
shall descend to an heir or pass to a devisee, such heir or devisee 
shall satisfy and discharge such mortgage out of his own property, 
without resorting to the executor or administrator of his ancestor, un- 
less there be an express direction in the will of such testator that such 
mortgage be otherwise paid." ' 



■ I R. S. 749, § 4. 



§§ 266-268.] THE PEIMAKY FUND. 181 

§ 266. Rule prior to Revised Statutes. — This is a different rule 
from that which prevailed prior to the Eevised Statutes. The rule 
then was that when a man gave a bond and mortgage for a debt of 
his own contracting, the mortgage was understood to be merely a 
collateral security for the personal obligation, and the debt was re- 
quired to be paid out of personal assets. But when a man had pur- 
chased, or had received by devise to him, land with an incumbrance 
on it, he became a debtor only in respect to the land ; and if he 
promised to pay it, it was said to be a promise rather on account of 
the land, which continued notwithstanding to be the primary fund. 
It was sometimes said that the estate which had received the benefit 
should also bear the burden. As to wills, the testator might, by ex- 
press directions, charge a mortgage debt upon his personal assets, or, 
even without express words, he might do so by such dispositions and 
language as were tantamount ; as, for instance, if the continuance of 
the charge primarily on the land would be repugnant to some of the 
provisions of the will and defeat them.' 

§ 267. Application of the statute. — The statute was passed to 
remedy what seemed to the revisers to be an injustice," and it plainly 
has an advantage over the former rule in being definite and intelligi- 
ble. The rule of the statute applies as well to cases of intestacy as to 
cases where the mortgagor has disposed of the whole or a part of 
his estate by will,' and the provision which makes the real estate the 
primary fund for the payment of the mortgage debt, is never dis- 
turbed except by some clear and express direction in the will.* The 
general expression in a will, "after all my lawful debts are paid and 
discharged, I give," etc., is not " an express direction that the mort- 
gage be otherwise paid," such as the statute requires, in order to ex- 
empt the devisee from its payment, ,and charge the executors with 
the payment thereof out of the assets of the testator in their hands. ° 

§ 268. Limitations of the rule. — But this provision of the statute 
does not apply to a case where the mortgage is a collateral security 
only for the debt of others ; and the executors have funds in their 
hands of the principal debtors, which the law devotes to the 



• Cumberland v. Codrington, 3 Johns. " House v. House, 10 Paige, 158. 

Ch. 229, 257, 272 ; Mollan v. Griffith, 3 * Taylor v. Wendell, 4 Bradf. 324 ; 

Paige, 402 ; Campbell v. Campbell, 30 Waldron v. Waldron, Id. 114. 

N. J. Eq. 415. ' Rapalye v. Rapalye, 27 Barb. 610. 

2 See Revisers' Notes, 3 R. S. (2d ed.)6oo. 



182 MOETGAGES OF REAL PEOPEETY. [§§ 269-270. 

payment of such principal debt. It only applies as between devisee 
or beirs and the personal representatives of the estate of the testator 
or intestate. So, where the land of one partner is mortgaged to pay 
a copartnership debt, the copartnership assets are the primary fund 
for its payment.' 

The statute only applies to mortgages where the Ken is created by 
the act of the parties, and is without effect upon liens which arise by 
operation of law, as in the case of the equitable lien of a vendor for 
unpaid purchase money. It has often been held, both before and 
since the statute, that in case of such unpaid purchase money, the 
heir or devisee is entitled to have the same paid out of the personal 
property.' 

§ 269. The sole object of the statute was to change the rule of 
the common law, under which the heir or devisee had the right, in cer- 
tain cases, to call upon the personal representatives of the decedent 
to pay off the mortgage. , It does not, by its terms, purport to affect 
the rights of creditors, but simply to establish a rule of habihty as 
between devisees or heirs and the personal representatives. Where 
there is a personal liability by contract, to which the mortgage is a 
collateral security, it was not the design of the statute to deprive the 
party of his right to enforce that liability ; nor was it intended to 
compel a resort to any mode of marshalling assets for the purpose of 
adjusting the equities as between the representatives and third par- 
ties.' It does, however, make the land the primary fund for the 
payment of the mortgage debt,' and where the rights of the creditor 
will not be prejudiced, a court of equity may compel the land to be 
sold and the proceeds applied to the debt, before allowing the mort- 
gagee to proceed against the personal assets of a deceased mort- 
gagor.' 

§ 270. Mortgages of leaseholds. — The mortgage of a leasehold 
interest in lands is a mortgage upon part of the personal estate, and 
ia payable out of personal assets, though this does not impair the right 
of a creditor to enforce his specific hen.' 

' Robinson v. Robinson, i Lans. 117. brook, 32 N. Y, 587 ; Roosevelt v. Car- 

' Wright V. Holbrook, 32 N. Y. 587 ; penter, 28 Barb. 426. 

Livingston v. Newkirk, 3 Johns. Ch. * Mosely v. Marshall, 27 Barb. 42. 

312 ; Cogswell v. Cogswell, 2 Edw. 231 ; ' Rice v. Harbeson, 2 N. Y. Sup. (T. 

Johnson v. Corbett, 11 Paige, 265 ; Lam- & C.) 4 ; Moore v. Dunn, 92 N. C. 

port V. Beeman, 34 Barb. 239. 63. 

Per Davis, I., in Wright v. Hoi- « Sheldon v. Ferris, 45 Barb. 124. 



§ 271.] THE PEIMAET FUND. 183 

§ 271. Charging parcels of land in inverse order of aliena- 
tion. — When the mortgagor sells a parcel of the land, with warranty J 
against the incumbrance, or for full consideration, the parcel remain- 
ing in his hands is the primary fund for the payment of the mort- 
gage, that is to say, the different parcels of land are to be charged in 
the inverse order of their alienation.' The same principle is applica- 
ble to subsequent incumbrances upon different parcels of the mort- 
gaged premises, either by mortgage or judgment.^ For the purpose 
of determining the equity between the respective owners of parcels 
of land subject to a mortgage upon all, a mortgage is to be regarded 
as an alienation ^ro tcmto at the time of its date;" and a purchaser 
at a foreclosure sale acquires the equity of a grantee as of the date of 
the mortgage foreclosed.* 

A parol sale of part of the mortgaged premises, followed by pos- 
session and improvements on the same by the vendee, is sufficient as 
between the vendee and the mortgagor and those claiming under 
him, having actual notice of the parol sale, to throw the burden of 
the mortgage upon the part of the premises retained by the mort- 
gagor.' 

The principle of charging different parcels of the mortgaged prem- 
ises, which have been sold at various times subsequent to the mort- 
gage, in the inverse order of their alienation, is not always confined 
to the original alienations by the mortgagor, who is personally liable 
for the payment of the debt. The principle is equally applicable to 
several conveyances at different times by a grantee of the whole or a 
part of the mortgaged premises, where he conveys with warranty. 

' Gill V. Lyon, i Johns. Ch. 447 ; ford v. Hill, 46 Conn. 42 ; Looney v. 

Clowes V. Dickinson, 5 Id. 235 ; Gouver- Quill, 3 Mackey (D. C.) 51. 
neur v. Lynch, 2 Paige, 300 ; Guion v. ' Stuyvesant v. Hall, 2 Barb. Ch. 151 ; 

Knapp, 6 Id. 35 ; Patty v. Pease, 8 Id. James v. Hubbard, i Paige, 228 ; Jen- 

277 ; Snyder v. Stafford, 11 Id. 71 ; Kel- kins v. Freyer, 4 Id. 47 ; Skeel v. Spra- 

logg V. Rand, 11 Id. 5g ; New York Life ker, 8 Id. 182 ; Schryver v. Teller, 9 Id. 

Ins. and Trust Co. v. Milnor, i Barb. 173 ; New York Life Ins. and Trust Co. 

Ch. 353 ; Stuyvesant v. Hall, 2 Id. 151 ; v. Vanderbilt, 12 Abb. 458 ; Andreas v., 

The New York Life Ins. and Trust Co. Hubbard, 50 Conn. 35c. 
V. Cutler, 3 Sandf. Ch. 176 ; La Farge ' Mulligan's Appeal, 104 Pa. St. 503. 
Ins. Co. V. Bell, 22 Barb. 54 ; Warren * Hart v. Wandle, 50 N. Y. 381 ; Kel- 

V. Boynton, 2 Id. 13 ; Schrack v. Shri- logg v. Rand, 11 Paige, 60; La Farge 

ner, lOoPenna. St. 451; Gilbert v. Haire, Fire Ins. Co. v. Bell, 22 Barb. 67 ; Fas- 

43 Mich. 283 ; McKinney v. Miller, 19 sett v. Mulock, 5 Col. 466 ; Lyman v. 

Mich. 142 ; Niles v. Coult, 30 N. J. Eq. Lyman, 32 Vt. 79 ; Sibley v. Baker, 23 

30 ; Lock V. Fulford, 52 111. 166 ; Van Mich. 312. 
Slyke V. Van Loan, 26 Hun, 344 ; San- ' Root v. Collins, 34 Vt. 173. 



184 MORTGAGES OF BEAL PEOPEETY. [§§ 272-273. 

In such case the several grantees take the land with all of its equita- 
ble rights and burdens.' And the right of each purchaser or incum- 
brancer to have the parcels in the hands, of the debtor, at the time he 
naakes his purchase or acquires his lien, applied to the payment of 
the prior lien, cannot be disturbed by anything which takes place 
after his title or lien is perfected, and each new claimant must take 
subject to prior equities. 

The principle under which several parcels of land covered by the 
same mortgage are subjected to the lien in the inverse order of their 
alienation, has no application where the successive conveyances are to 
the same party. A purchaser of all of the parcels of the mortgaged 
property has no equity to require that they shall be sold away from 
him in the inverse order in which he purchased." 

§ 272. Examples. — One who takes a deed of a parcel of real es- 
tate with warranty against incumbrances may, upon discovering that 
it is incumbered, in common with other property, with a prior mort- 
gage, purchase such mortgage and enforce it primarily against the 
balance of the mortgaged property remaining in the hands of his 
grantor. And such grantor cannot protect himself or his property 
by the purchase of a subsequent mortgage upon it.° 

Where land which was subject to a mortgage was afterward sold, 
with f uU covenants of warranty and against incumbrances, in two 
different lots to different purchasers at different times, and the mort- 
gagee afterward entered (under the law of Massachusetts) for the 
purpose of strict foreclosure, and the foreclosure became absolute as 
to the lot last sold, it was held that the owner of the lot first sold 
might redeem by paying the balance due upon the mortgage debt 
after deducting the full value of the other lot with the buildings 
thereon, and that it was immaterial that the buildings had been 
erected after he acquired his title.* 

§ 273. Land conveyed expressly subject to mortgage debt. — 

iWhere land is conveyed expressly subject to a mortgage thereon, the 
land is the primary fund as between grantor and grantee, and those 
deriving title from the grantee, for the payment of the mortgage 



■ Guion V. Knapp, 6 Paige, 35 ; San- ' Kilborn v. Robbins, 90 Mass. (8 Al- 

ford V. Hill, 46 Conn. 42 ; Sager v. Tup- len) 466. 

per, 35 Mich. 134. ■> George v. Wood, 93 Mass. (11 Allen) 

' Steere v. Childs, 15 Hun, 511. 41. 



§ 274.] THE PRIMAET FUND. 185 

debt ;^ and this is so even if the mortgagee holds other collateral secu- 
rity." The purchaser of the land acquires the equity of redemption 
merely, that is to say, the right to own the premises on paying the 
mortgage debt ; and he must either pay the debt, or allow the iands 
to be appropriated toward its payment. So, too, where land is sold 
under a junior judgment or mortgage, the purchaser acquires the 
equity of redemption merely, and the land is the primary fund for 
the payment of the mortgage.' 

If the purchaser of the mortgaged premises assumes the payment 
of the mortgage debt, the land is the primary fund for the payment ;* 
but if this be insufficient, the purchaser must, as between him and 
his grantor, discharge the obligation. The land is the security both 
of the mortgagor and of his grantee, as against their respective cove- 
nants ; but the debt is that of the grantee, and the mortgagor stands 
merely as his surety.^ 

A subsequent purchaser or incumbrancer of a portion of the mort- 
gaged property takes subject to any explicit provisions in a prior 
grant or mortgage of the property as to the order in which the parcels 
shall be sold, and that without any reference to the considerations 
for which such preferences were agreed upon." Each purchaser and 
incumbrancer is chargeable with notice of the provisions of the pre- 
vious deeds of his grantor, and of mortgages executed by him.' 

§ 274. Where parcels are expressly charged with mortgage. 
— But if a portion of mortgaged land be conveyed subject to the 
whole mortgage, the amount of which is allowed out of the purchase 
money, the parcel conveyed is the primary fund to pay the debt." 



' Jumel V. Jumel, 7 Paige, 591 ; Tripp v. Vincent, 3 Barb. Ch. 613 ; Ju- 

Huebsch v. Scheel, 8i 111. 281. mel v. Jumel, 7 Paige, 591 ; Halsey v. 

^ Brewer v. Staples, 3 Sandf. Ch. 579. Reid, 9 Id. 446 ; Marsh v. Pike, 10 Id. 

2 Tice V. Annin, 2 Johns. Ch. 125 ; 595 ; Cornell v. Prescott, 2 Barb. 16 ; 

McKinstry v. Curtis, 10 Paige, 503 ; Blyer v. MonhoUand, 2 Sandf. Ch. 478 ; 

Russell V. Allen, 10 Id. 249 ; Vander- Ferris v. Crawford, 2 Den. 595 ; Mills v. 

kemp V. Shelton, 11 Id. 28 ; Weaver v. Watson, i Sweeny, 374. 

Toogood, I Barb. 238 ; Matthews v. * Mickle v. Maxfield, 42 Mich. 304. 

Aikin, i N. Y. (i Comst.) 595. 'Steere v. Childs, 15 Hun, 511 ; Jumel 

* Torrey v. Bank of Orleans, g Paige, v. Jumel, 7 Paige, 591 ; Harris v. Fly, 

649 ; Briscoe v. Power, 47 111. 447 ; Wa- Id. 421 ; Knickerbocker v. Boutwell, 2 

ters V. Hubbard, 44 Conn. 340 ; Mich. Sand. Ch. 319. 

State Ins. Co. v. Soule, 51 Mich. 312 ; ° Bowne v. Lynde, 91 N. Y. 92 ; Hal- 
Welch V. Beers, 90 Mass. (8 Allen) 151 ; sey v. Reed, 9 Paige, 446 ; Russell v. 
Swett V. Sherman, 109 Mass. 231. Pistor, 7 N. Y. (3 Seld.) 171 ; Zabriskie 

'Rubens v. Prindle, 44 Barb. 336; v. Salter, 80 N. Y. 555 ; Hart v. Wandle, 



186 MORTGAGES OF BEAL PEOPEKTT. [§ 274. 

So, too, if by the terms of tlie bargain, the grantee of a parcel of the 
land is to assume a specified portion of the mortgage, such portion 
then becomes a specific lien on the parcel so conveyed.' 

And where a mortgagor conveys a part of the mortgaged lands by 
warranty deed, without reference to the incumbrance, such deed ex- 
empts the part sold from contribution, either to the mortgagor or to 
subsequent purchasers of the residue of the mortgaged lands.' 

Where a conveyance was made " subject, however, to the payment 
by the grantee of all existing liens upon said premises," this was held 
to charge the part conveyed with a portion of the mortgage in the 
proportion which its value bore to the whole security at the time of 
the conveyance.^ 

The primary liability of a portion of the mortgaged property, 
under a stipulation on the part of the grantee assuming the whole 
mortgage as part of the purchase money of such portion, will not be 
disturbed by a reconveyance of a part of the portion so conveyed to 
the grantor, and the several parts will remain liable for their propor- 
tions of the debt.' 

It has been held that where a conveyance is made of a portion of 
the mortgaged property in which no mention is made of incum- 
brances, and there are no circumstances showing a contrary intention, 
the presumption is that the grantor is to pay the whole mortgage, and 
the portion of the mortgaged lands remaining in his hands will be 
the primary fund for such payment.' 

Where joint owners of property, subject to a mortgage executed 
by themselves, made partition, and one of them assumed to pay off 
the whole of the incumbrances on the property, the portion of the 
property granted to the person so assuming will, as between the 



50 N. Y. 381 ; Engle v. Haines, 5 N. J. « Henderson v. Truitt, 95 Ind. 309 ; 

Eq. (I Halst.) 186 ; 43 Am. Dec. 634 ; Chase v. Woodbury, 6 Cush. (Mass.) 

Lilly V. Palmer, 51 III. 331 ; Caruther v. 143 ; Kilborn v. Robbins, 8 Allen (Mass.) 

Hall, 10 Mich. 40 ; Cherry v. Monro, 2 466. 

Barb. Ch. 618 ; Brewer v. Staples, 3 ^ Hoy v. Bramhall, 19 N. J. Eq. 563 ; 

Sand. Ch. 579 ; Cannon v. Kreipe, 14 Hill's Administrators v. McCarter, 27 

Kans. 324 ; Coles v. Appleby, 22 Hun, N. J. Eq. 41 ; Briscoe v. Power, 47 111. 

72, afB'd 87 N. Y. 114. 447. 

' Torrey v. Bank of Orleans, 9 Paige, * Weber v. Zeimet, 30 Wis. 283 ; Bowne 

649 ; Briscoe v. Power, 47 111. 447 ; Wa- v. Lynde, 91 N. Y. 92. 

ters V. Hubbard, 44 Conn. 340 ; Mich. ' Hopkins v. Wolley, 81 N. Y. 77 ; 

State Ins. Co. v. Soule, 51 Mich. 312 ; contra, Haskell v. The State, 31 Ark.' 

Welch V. Beers, go Mass. (8 Allen) 151 ; 91. 
Swett V. Sherman, 109 Mass. 231. 



§275.] THE PKIMAET FUND. 187 

mortgagors, be the primary fund for the payment of the mortgage, 
and on foreclosure will be first sold." 

§ 275. Land of one person mortgaged for debt of another. — 

Where m'oney is raised on the real estate of a wife for the benefit 
of a third person, the husband joining with his wife in the bond, the 
land is the primary fund for the payment of the debt." And where 
a husband and wife owning undivided half parts of real estate, mort- 
gaged the whole to secure a debt of the husband, his half was held 
in equity to be primarily liable to pay the debt." 

So, where a husband and wife mortgaged a homestead to secure 
the payment of a partnership debt of a firm of which the husband 
was a member ; and subsequently to the execution of the mortgage 
the said firm made an assignment for the benefit of its creditors, the 
mortgagors were held entitled to have a pro rata share of the pro- 
ceeds of the assets of the partnership in the hands of the assignee, ap- 
plied in relief of the obligation, their homestead standing as security 
only for the balance.* 

Where one mortgage is made to secure unpaid purchase money of 
two parcels of land belonging to different owners, each parcel is prima- 
rily hable for its own price.' 

Where two persons jointly purchased land and gave a mortgage 
for the purchase money and made amicable partition, and one paid 
his share of the mortgage debt, the parcel held by the other was 
directed to be sold first in satisfaction of the balance due upon the 
mortgage." 

Where a testator mortgaged his individual real estate to secure the 
payment of the notes of his firm, and died before their payment, 
having devised the mortgaged property without express direction in 
his wiU for the payment of the mortgage, it was held that the firm 
assets in the hands of his executors were primarily liable to satisfy 
the mortgage.' 

To charge a purchaser with the equity of one person whose lands 
are mortgaged for the debt of another, such purchaser must have 



' Hards v. Burton, 79 111. 504. Barb. 561; Smith v. Townsend, 25 N. Y. 

'Moore v. Moore, 21 How. 211; Mof- 479 ; Bank of Albion v. Burns, 46 N. Y. 

fett V. Roche, 77 Ind. 48. 170. 

' Erie County Savings Bank v. Roop, ^ Dickson v. Chorn, 6 loWa, 19. 

80 N. Y. 591 ; Loomer v. Wheelwright, ' Coutant v. Servoss, 3 Barb. 128. 

3 Sand. Ch. 135; Niemcewicz v. Gahn, * Roddy's Appeal, 72 Penna. St. 98. 

3 Paige, 614; Vartie v. Underwood, 18 'Robinson v. Robinson, i Lans. 117. 



188 MORTGAGES OF REAL PROPERTY. . [§§ 276-277. 

notice of the facts. Thus, two persons owned a piece of land in com- 
mon, and one of them owned another piece ; both pieces were mort- 
gaged to secure the debt of the person owning the latter parcel, who 
thereafter conveyed the latter parcel to a purchaser without .notice and 
with warranty against incumbrances. Subsequently he sold his undivid- 
ed interest in the parcel owned in common to one without knowledge 
of the other facts, and it was held that the purchaser of the parcel 
held in severalty might insist upon the whole debt being satisfied out 
of the parcel held in common, and that the purchase of the half in- 
terest in the latter piece was to be in no degree prejudiced by the 
rascality of his grantor, but was to take as if the mortgage debt had 
been the debt of both of the parties to the instrument.' 

§ 376. Release from primary liability. — One who purchases part 
of mortgaged lands and agrees with his grantor to assume the whole 
mortgage in exoneration of the residue of the lands, can discharge his 
land from the consequences of that assumption by agreement with his 
grantor, made while stiU the owner of the residue of the land subject 
to the mortgage, and a grantee of the residue after such discharge 
cannot claim the benefit of the assumption. The grantee succeeds 
only to the equities of the grantor existing at the time of the convey- 
ance, and that without any question of notice. The case will be quite 
different if the discharge is given after the grantor has sold the resi- 
due of the land to a party who has relied on the assumption.^ 

§ 877. Subrogation. — Where a creditor has two funds, to either 
of which he may resort for the satisfaction of his debt, and one of 
which is primarily liable for the payment thereof, the owner of the 
latter fund stands in the relation of surety for the owner of the pri- 
mary fund in the application of the equitable principle of substitution 
in behalf of sureties. A surety, or a party who stands in the situation 
of a surety, is entitled to be subrogated to all the rights and remedies 
of the creditor whose debt he is compelled to pay, as to any fund, 
lien, or equity which the creditor had against any other person or 
property on account of such debt.' If the mortgagee knowingly and 
voluntarily do any act which shall impair or destroy this right of 
subrogation, he, and not the person who stands as surety, can be made 
to sufier ; and it is on this principle that the release of a portion of 



Kennelly v. Kelly, 51 Conn. 329. ' Eddy v. Traver, 6 Paige, 521 ; 

' Judson V. Dada, 79 N. Y. 373, Cheesebrough v. Millard, iJohns.Ch. 412. 



§§ 278-279.] THE PEIMAEY FTJKD. 189 

the mortgaged premises, which are primarily liable, with notice of 
the equities of other parties, is held to he pro tanto a discharge of the 
mortgage.' 

It has also been said that a mortgagee having a claim upon two 
funds, may lose his claim upon one of them by mere laches, and that 
if a mortgagee, to accommodate the heirs of a deceased mortgagor, 
delays foreclosure until the lands fall in value, he cannot thereafter 
call upon the personal estate." 

§ 278. Junior liens protected. — Where the holder of a first mort- 
gage has received ample collateral security for its payment, the rights 
of a subsequent mortgagee cannot be defeated by the assignment of 
the first mortgage without the collaterals to a person having knowl- 
edge of the facts.' 

So, stock in a corporation assigned as collateral to a mortgage upon 
real estate, will, as between the mortgagor and the second mortgagee, 
be applied to the payment of the mortgage before recourse is had to 
the land ; and this equity will not be defeated by a levy on the stock 
under a judgment against the mortgagor.* 

§ 279. Controlling remedy of mortgagee. — The duty of the 
creditor holding the prior lien is a negative one, and consists in re- 
fraining from doing any act which shall injure or destroy the rights 
of the person who stands in the situation of surety for the debt. 
There is no general rule which compels the creditor to look to the 
principal debtor, and exhaust his remedy against the primary fund, 
before he can be permitted to resort to the fund which is only sec- 
ondarily liable ; ° but there are cases where the remedy of a creditor 
may, in equity and good conscience, be so controlled by the court as 
to preserve the rights of both creditor and surety, and enable them 
both to escape without injury." But a court of equity will take care 
not to give the surety or junior creditor this relief, if it will endanger 
thereby the prior creditor, or in the least impair his prior right to 
raise the debt out of both funds. The utmost that equity enjoins in 
such a case is, that the creditor who has a prior right to two funds, 

' Ingalls V. Morgan, lo N. Y. (6 Seld.) * Loan Association v. Hawk, 27 N. J. 

187- Eq- 335- 

^ Johnson v. Corbett, 11 Paige, 265, ^ Hayes v. Ward, 4 Johns. Ch. 131 ; 
272. JeTy V. Resell, 32 Ark. 478. 

" Bergen Savings Bank v. Barrows, 30 * Ingalls v. Morgan, 10 N. Y. (6 Seld.) 
N. J. Eq. 89. 178, and cases cited ; Harrison v. Gue- 

rin, 27 N. J. Eq. 219. 



190 MORTGAGES OF EEAL PEOPEETY. [§ 279. 

shall exhaust that to which the junior creditor cannot resort. But 
when there exists any doubt as to the sufficiency of that fund, or even 
where the prior creditor is unwilling to run the hazard of getting it 
out of that fund, there is no principle which can take from him any 
part of his security until he is completely satisfied.' The cases have 
never gone so far as to sanction an interference with the remedies of 
the mortgagee, when such action will trench upon his rights or oper- 
ate to his prejudice.' 

A mortgagee's right to prompt foreclosure will not be impeded by 
compelling him, in the interest of a subsequent purchaser of the re- 
maining land, to first resort to his personal remedy against a purchaser 
of a part of the mortgaged premises from the mortgagor, who as- 
sumed to pay a part of the mortgage debt.' 

In some cases, it has been said that the junior creditor who 
desires to control the remedy of the senior creditor should give secu- 
rity against the expense and risk involved in the proceeding ; * and if 
any right of the senior creditor would be sacrificed by delay, he will 
not be compelled to wait without indemnity in order to protect junior 
equities.' 

A mortgagee of land on which there is an outs1;finding prior ven- 
dor's lien, whose. mortgage also includes other lands as well as personal 
property, will be compelled in equity at the suit of the vendor hold- 
ing such vendor's lien, to exhaust the other lands and property be- 
fore resorting to the land affected by the vendor's lien, and this 
although the mortgagee holds a lien superior to the vendor's Hen, 
because he had no notice thereof when he took his mortgage." 

In a ease where a mortgagee had intentionally refrained from taking 
satisfaction out of a fund primarily hable, his bill to foreclose on the 
remaining property was dismissed.' 

Where a mortgagee holding a lien upon two funds comes into a 
court of equity to ask equitable relief, as, for instance, to set aside a 
sale made against the fund secondarily liable, he may be compelled to 
exhaust the primary fund for the payment of his debt ;° so, too, if 
the primary fund is outside of the jurisdiction of the court, the cred- 



' Evertson v. Booth, ig Johns. 493 ; * Hayes v. Ward, 4 Johns. Ch. 131. 
King V. McVickar, 3 Sandf. Ch. 192. 'James v. Hubbard, t Paige, 228. 

^Story's Eq. Jur. §633; Slater v. 'Gordon v. Bell, 50 Ala. 213. 
Breese, 36 Mich. 7 ; Walker v. Covar, ' Moffett v. Roche, 77 Ind. 48. 
2 S. Car. 16. ' Soule v. Ludlow, 3 Hun, 503 ; s. c. 

3 Palmer v. Snell, ill 111. 161. 6 N. Y. Sup. (T. & C.) 24. 



§§ 280-281.J PRIORITIES. 191 

itor may be refused relief until he shows that he has exhausted his 
other remedy.' And the court, on the foreclosure of a first mortgage, 
may, for the protection of junior liens, require the plaintiff to first 
make application of a collateral security in his hands.'' 

The rule requiring the mortgagee to seek satisfaction out of the 
fund in which the junior lienor has no interest, is subject to the limi1> 
ation that if other persons have a superior equity, their rights must be 
respected.^ 

§ 280. Sale made in one parcel. — ^Where several parcels of mort- 
gaged land are included in one judgment of foreclosure, the equities 
of the various parties in interest are commonly protected by selling 
the parcels in the order of their equitable liability to pay the mortgage 
debt. Where the mortgaged premises can be economically or profit- 
ably sold in parcels, this afEords a convenient method of protecting 
the rights of all concerned, without trespassing on the just claims of 
the prior creditor ;^ but cases may be supposed of several parcels of 
land bound by the same judgment, and subject also to a prior lien, 
where a sale in gross under the judgment would be more beneficial 
to all the parties concerned than one in detail,* and, in such cases, the 
court will not compel the mortgagee to adopt a disadvantageous method 
of sale, in order to enable junior incumbrancers or owners the more 
easily to adjust their equities as between themselves." 

It will be remembered that the order of sale in parcels is only of 
value to preserve equitable rights, and that equitable rights do not 
depend upon forms. No matter how the fund may have been created, 
it will be marshalled and distributed according to equitable rules, quite 
independent of the form in which the sale was made, and the parcels 
are sold separately or in a certain order for mere convenience of the 
court in applying such rules.' 

PEIOEITIj;S INDEPENDENT OF THE EECOEDING ACTS. 

§ 281. Priority of mortgages as controlled by agreements of 
parties. — Where two mortgages have the same date, and are acknowl- 



> Rice V. Harbeson, 2 N. Y. Sup. (T. « Frost v. Frost, 3 Sandf. Ch. 188. 

& C.) 4, afB'd 63 N. Y. 493. . 'Clowes v. Dickinson, 5 Johns. Ch. 

' Pettibone v. Stevens, 15 Conn. 19. 235 ; s. c. affi'd 9 Cow. 405 ; James v. 

' Baird v. Jackson, 98 111. 78. Hubbard, i Paige, 228 ; Snyder v. Staf- 

*Walcott V. Schenck, 23 How. 385. ford, 11 Id. 71; Oppenheimer v. Walker, 

5 Cunningham v. Cassidy, 17 N. Y. 3 Hun, 30; s. c. 5 N. Y. Sup. (T. & C.) 

276 ; American Ins. Co. v. Oakley, q 325. 

Paige, 259. 



192 MORTGAGES OE EEAL PEOPERTT. [§ 281. 

edged and delivered at tte same time, the recording acts have no 
application in determining their priority." In such a case, the under- 
standing, agreement, and intention of the parties will control as to 
which shall have a preference over the other, so as to be a prior lien 
upon the premises,'' and the assignees of such mortgages, even with- 
out notice, would, it seems, be bound by such agreements." 

In the absence of agreement or equities to the contrary, two mort- 
gages executed and delivered at the same time are of equal lien,' even 
though maturing at different dates,' and recorded at different times." 

Although one mortgage cannot acquire priority over another de- 
livered at the same time, by being recorded earlier, still where one is 
recorded shortly before the other, this may furnish evidence of an in- 
tention to give it priority.' And in the absence of evidence of any 
other fact, priority of record will control. ° 

In order to avoid the effect of the recording act, and to awai-d to one 
mortgage equality of lien over another,, previously recorded, it should 
appear clearly and beyond doubt that the two mortgages were in fact 
executed not only on the same day, but at the same time, and that each 
mortgagee had knowledge of the rights being acquired by the other." 

The owner of a mortgage may contract to relinquish his right of 
legal precedence to another of junior date, and if the contract be made 
in good faith and be founded on a valuable consideration, a court of 
equity would adjust the rights of the parties accordingly.'" Such an 
agreement, however, is not entitled to be recorded, nor would the 
record be constructive notice to anybody." 

'Granger v. Crouch, 86 N. Y. 494; ■• Vredenburgh v. Burnet, 31 N. J. Eq. 

Stafford v. Van Rensselaer, g Cow. 316, 229 ; Eleventh Ward Savings Bank v. 

afE'g Van Rensselaer v. Stafford, Hopk. Hay, 55 How. 444; Riddle v. George, 58 

569 ; Douglass v. Peele, Clarke, 564. N. H. 25; Gausen v.Tomlinson, 23 N. J. 

^ Jones V. Phelps, 2 Barb. Ch. 440, 446; Eq. 405. 

Fort V. Burch, 5 Den. 187 ; Jackson v. ^ Collerd v. Huson, 34 N. J. Eq. 38, 

Post, 15 Wend. 588 ; Van Rensselaer v. and valuable note of the reporter. 

Clark, 17 Id. 25 ; Greene v. Warnick, ^ Gausen v. Tomlinson, 23 N. J. Eq. 

64 N. Y. 220, rev'g Greene v. Deal, 4 405 ; Walker v. Buffands, 63 Cal. 312. 

Hun, 703 ; Rigler v. Light, 90 Penna. ' Naylor v. Throckmorton, 7 Leigh. 

St. 235; Wheeler V. McFarland, 10 Wend. (Va.) 98 ; 30 Am. Dec. 492. 

318; Gilman v. Moody, 43 N. H. 239; 'Clabaugh v. Byerly, 7 Gill (Md.) 354; 

Freeman v. Schroeder, 43 Barb. 618 ; 48 Am. Dec. 575 ; White v. Leslie, 54 

Wray v. Fedderke, 43 N. Y. Super. Ct. How. 394. 

(11 J. & S.) 335; Chadbornv. Rahilly, ° White v. Leslie, 54 How. 394. 

28 Minn. 394 ; 10 N. W. Reptr. 420 ; '° Darst v. Bates, 95 111. 493. 

Matthews v. Everett, 23 N. J. Eq. 473. " Gillig v. Maas, 28 N. Y. 191, 213 ; 

^ Greene V. Warnick, j«^rffl. Bank for Savings v. Frank, 56 How. 



§§ 282-283.] PEiOEiTiES. 193 

§ 282. Examples. — ^Where a mortgagee without payment released 
Ms mortgage of record to enable the mortgagor to mortgage the same 
lands to another person and for an agreed amount, but with the agree- 
ment that as between the parties it should remain in full force there- 
after, and subsequently a third mortgage was made to a person having 
notice of the facts, it was held that the first mortgage, though released 
of record, continued a lien as against the third.' 

If a mortgagor and mortgagee agree that the mortgage shall not be 
recorded, in order that the mortgagor may raise more money on the 
land, notice of such mortgage and agreement on the part of a second 
mortgagee, who records his mortgage first, wiU not let in the first 
mortgage to priority.'' 

A mortgage to secure $1,200, with an incorrect description, was 
recorded, and thereafter a second mortgage, covering the same prop- 
erty intended to be mortgaged by the first, was made, which con- 
tained the words, " except one mortgage for |1,200." Subsequently 
the mortgagor executed a new mortgage to correct the mistake in 
the first description, and it was held that the second mortgagee was 
charged with notice of the first mortgage, and the corrected mort- 
gage was given a prior lien.' 

Where a mortgage was given on real estate, incumbered by an un- 
recorded mortgage, with an agreement that the second mortgage 
should be a prior lien and first recorded, but the holder of the first 
mortgage fraudulently recorded his first, it was held that, as between 
the original parties and aU persons with notice of the facts, the second 
mortgage was the prior lien ; but that the rule was otherwise as 
against the innocent assignee of the first mortgage.* 

§ 283. Conflicting claims to priority. — "Where D had a first 
mortgage on certain lands, which was void for uncertainty as to Gr as 
to part of the land, but good as to L, who had notice of the mistake ; 
while L has a second mortgage which sufficiently described the land, 
and which was prior to G, who had attached, it was held that the third 
incumbrancer (G) was entitled to nothing until the second (L) was 
paid ; and that the second had no right to any of the fund until an 
amount equal to the first mortgage (D) had been taken therefrom, 
and that the first mortgagee should not be allowed to charge against 

403, afii'd 45 N. Y. Super. (13 J. &. S.) ' Hendrickson v. Wooley, 39 N. J. 

404. Eq. 307. 

' Bank v. Butterfield, 100 Ind. 229. ^ Clark v. Bullard, 66 Iowa, 747. 

* Cook V. Shone,. 63 Iowa,. 352. 

13 



194 MORTGAGES OF EEAL PEOPERTY. [§§ 284r-285. 

the second any sum which, by reason of his laches, had been appro- 
priated to the third incumbrancer.* 

§ 284. Priority of purchase-money mortgages. — It is provided 
by statute that whenever lands are sold and conveyed, and a mort- 
gage is given by the purchaser at the same time to secure the pay- 
ment of the purchase money, or any part thereof, such mortgage shall 
be preferred to any previous judgment which may have been ob- 
tained against the purchaser." And also that, where a husband shall 
purchase lands during coverture, and shall at the same time mortgage 
his estate in such lands to secure the payment of the purchase money, 
his widow shall not be entitled to dower out of such lands as against 
the mortgagee or those claiming under him, although she shall not 
have united in such mortgage, but she shall be entitled to her dower 
as against all other persons." 

The equity of the rule which secures to the vendor of property a 
priority of lien for the purchase price, commends itself to our sense 
of justice, and, quite independent of statute, the rule would be the same. 
Indeed, even if no mortgage were given, the vendor would hold a 
lien for his unpaid purchase money, which would be prior to the 
claims of all persons, except iona fide purchasers from his vendee, 
unless he should do some act which manifested a willingness to waive 
the lien.* The theory upon which the rule is based seems to be that 
neither the vendor nor any person claiming under him, unless for a 
valuable consideration and without notice, shall hold and enjoy the 
estate without paying for it, and that, to the extent of the unpaid 
purchase money, the title still remains in the vendor. The deed and 
the mortgage back are regarded as the same transaction, and taking the 
whole together the purchaser acquires only the right of redemption." 

§ 285. Examples. — A mortgage for purchase money has no pri- 
ority over other liens upon the property existing at the time of the 
conveyance to the mortgagor. ° 

1 Goodbar v. Dunn, 6i Miss. 6i8. Grain, i Paige, 455 ; Rawson v. Lamp- 

« I R. S. 749, § 5 ; Codej § 1254 ; Curtis man, 5 N. Y. (i Seld.) 456 ; Hitchcock 

V. Root, 20 III. 53 ; Parsons v. Hoyt, 24 v. The Northwestern Ins. Co., 26 N. Y. 

Iowa, 154. 68 ; Dusenbury v. Hulbert, 59 N. Y. 541 ; 

3 1 R. S. 741, 1 5 ; Walters v. Walters, Savage v. The Long Island Ins. Co., 43 

73 Ind. 425. How. 462 ; Moring v. Dickerson, 85 N. 

< See Vendor's Lien for Purchase C. 466 ; Curtis v. Root, 20 111. 53 ; BoUes 

Money, §§ 52, 65. v. Carli, 12 Minn. 113 ; Clark v. Brown, 

' Stow V. Tifft, 15 Johns. 458 ; Jackson 85 Mass. (3 Allen) 509. 
■V. Austin, 15 Id. 477 ; Van Home v. '^Houston v. Houston, 67 Ind. 276. 



§ 386.] ' PEIOEITIES. 195 

^ A purcliase-inoney mortgage has priority over a mechanic's lien 
for work and materials done and furnished on the employment of the 
purchaser, before the time of the delivery of the deed, for which the 
vendor has contracted no personal obligation.' 

Where a widow assigns her dower right and takes back a mortgage 
to secure the consideration, her equities are the same as if she had 
conveyed the land and taken back a mortgage for the purchase price, 
and such mortgage is prior to the lien of a judgment against the 
grantee, though he was the heir of the husband of the dowress." 

§ 286. What is a purchase-money mortgage. — A mortgage 
given to a third person who advances the purchase money, has the 
same priority over a prior judgment as if made to the vendor.' It 
has also been said that a mortgage given for future advances to im- 
prove the property at the time of the mortgagor's taking title, would 
be entitled to a preference over the prior creditors of the mortgagor.' 
A mortgage from a lessee to his lessor, delivered at the same time 
with a lease for ninety-nine years, to secure future advances, has 
also been held to have a preference over a previous judgment against 
the mortgagor." So, a mortgage executed some time after the mort- 
gagor acquired title, to a person who was his surety for the purchase 
money, was preferred to a prior judgment against the mortgagor." 

When a deed and mortgage back are acknowledged and recorded 
simultaneously, the presumption is that the latter was for purchase 
money.' 

A recital in a mortgage that it was given for purchase money will 
not make it a purchase-money mortgage if it was not so in fact.' 
And, on the other hand, a mortgage actually given for purchase 
money will have all of its proper qualities though no such recital is 
contained in it.' 

' ' Lamb v. Cannon, 38 N. J. Law, Nickum, 38 Md. 270 ; Stansell v. Rob- 

362 ; Huber v. Disbold, 25 N. J. Eq. erts, 13 Ohio, 148 ; Foster's Appeal, 3 

170 ; Strong v. Van Duerson, 23 N. J. Pa. St. 79. 
Eq. 369. * Tallman v. Farley, i Barb. 280. 

* Pope V. Mead, 99 N. Y. 201. ' Ahem v. White, 39 Md. 409. 

" Jackson v. Austin, 15 Johns. 477 ; " Haywood v. Nooney, 3 Barb. 643. 
Ray V. Adams, 4 Hun, 332 ; Kittle v. ' Cunningham v. Knight, i Barb. 

Van Dyck, i Sand. Ch. 76 ; Clark v. 399. 

Munroe, 14 Mass. 351 ; McCauley v. " Taylor v. Post, 30 Hun, 446. 
Grimes, 2 Gill & Johns. 318 ; McGowan ' Appeals of City National Bank and 

V. Smith, 44 Barb. 232 : contra. Alder- York County National Bank, 91 Pa. St. 

son V. Ames, 6 Md. 56 ; Henesler v. 163. 



196 MORTGAGES OF REAL PROPERTY. [§ 287 

§ 287. Conflicts between mortgages given by purchaser at 
time of purchase.^ — In Dusenbv/ry v. Hulbert (59 N. Y. 541), a 
curious question was presented upon the conflicting claims of two 
mortgages to priority. In that case a contract was made by the 
owner of the land to sell it, part of the price to be paid in cash and 
part to be secured by a purchase-money mortgage. Prior to receiv- 
ing the deed, the intended purchaser falsely represented to a third 
person that he had title and could give a first mortgage, and upon 
this statement and upon his promise to make such a mortgage, he 
obtained a loan of $1,500. Subsequent to getting the money the 
transfer was closed, and a purchase-money mortgage was given. The 
vendee then executed a mortgage to secure tlie $1,500 loaned, and 
recorded it with his deed, but the vendor omitted to record his mort- 
gage for some days afterward. The court held that the purchase- 
money mortgage had priority ; the mortgage to the third person did 
not take eflEect until it was executed and after the delivery of the 
deed, and it then became a lien on his interest only, which was a 
mere equity of redemption. The third person was not protected by 
the recording acts, because the mortgage, when made, was in payment 
of an antecedent indebtedness, and the mortgagee did not part with 
anything on the faith of the mortgage, or because of the condition of 
the public records. 

Where a purchaser of land gave two mortgages for purchase money, 
one to his vendor and another to a third person for money used to 
make a cash payment, and both mortgages were recorded on the same 
day, the latter first, the mortgage given to the vendor was held to 
have priority.' 

Where a grantee gave back a purchase-money mortgage before de- 
livery of the deed, and afterward, at the time the deed was actually 
delivered, he also mortgaged the premises to a third party, in whose 
presence the delivery of the deed was made, and who had no notice 
of the prior mortgage, it was held that the delivery of the deed in the 
latter's presence was notice to him that, until then, the mortgagor had 
no title to incimiber to his prejudice, and that the second mortgage 
took precedence of the mortgage given to the vendor of the property." 



' Turk V. Funk, 68 Mo. 18 ; 30 Am. R. = Heffron v. Flanigan, 37 Mich. 274; 

771 ; Clark v. Brown, 3 Allen (Mass.) Farmers' L. & T. Co. v. Maltby, 8 

509 ; Heffron v, Flanigan, 37 Mich. 274 ; Paige, 361 ; State v. Bradish, 14 Mass. 

Brasted v. Sutton, 29 N. J. Eq. 513. 296. 



§§ 288-289.J PEIORITIES. 197 

§ 288. Mortgages for purchase money given after delivery of 
deed. — A mortgage, to be entitled to all of the special qualities of a 
mortgage for purcliase money, should be given at the time of the de- 
livery of the deed. If it be given to a third person for money loaned 
to purchase the property, it will stand, as any other mortgage for 
borrowed money as of its date, and will consequently be inferior in 
lien to prior judgments against the mortgagor, unless given at the 
very time of the vesting of the title in him, and as a part of that 
transaction.' If given to the vendor of the land it will hold priority 
over judgments obtained against the mortgagor prior to the vesting 
of the title in him,'' as well as over the claim of his widow for dower." 
As a general rule, the hen will prevail against general judgment cred- 
itors of the vendee.* 

Where a vendor does not receive payment of the entire amount of 
the consideration for the purchase money, he has an implied lien for 
the balance which may be enforced as against the vendee and all per- 
sons holding under him, except purchasers in good faith.'' If a mort- 
gage is given by the vendor for such purchase money, its validity as 
against creditors and other Hens will be tested by the sufficiency of 
the vendor's implied lien at the time of the dehvery of such mort- 
gage." Such lien cannot generally exist against purchasers in good 
faith, under a conveyance of the legal estate without notice, where 
the purchase money has been paid.' It has also been determined that 
a judgment creditor who advances his money upon the faith of an 
unincumbered title upon the record, without notice, is entitled to the 
lien acquired thereby, in preference to the secret, unrecorded lien of 
the vendor for part of the purchase money. ° But such a judgment 
will not prevail unless it is procured and docketed so as to become a 
legal hen prior to the delivery and recording of a mortgage executed 
for such unpaid purchase money." 

§ 289. No priority for money paid for improvements. — There 
is no principle of equity by which a purchaser of real estate which, at 



' Garson v. Green, i Johns. Ch. 308 ; ' See Vendor's Lien, ante, §| 52, 65. 
Clark V. Hall, 7 Paige, 382. « Spring v. Short, 90 N. Y. 538. 

' In the matter of Howe, i Paige, 129 ; ' Fisk v. Potter, 2 Keyes, 64 ; 2 Abb. 

Lane v. Ludlow, 6 Id. 316 n. ; Parks v. App. Dec. 140 ; Bayley v. Greenleaf, 7 

Jackson, n Wend. 442; Robinson v. Wheat. 46; Garson v. Green, i Johns. 

Williams, 22 N. Y. 386. Ch. 308, 309. 

' Warner v. Van Alstyne, 3 Paige, 513. * Hulett v. Whipple, 58 Barb. 224. 

■* Hulett V. Whipple, 58 Barb. 224. ' Spring v. Short, 90 N. Y. 538. 



198 MORTGAGES OF EEAL PEOPBETY. [§ 290. 

the time of the purchase, is subject to the hen of a judgment, can 
claim improvements subsequently made by him, although without 
knowledge of the judgment, to be exempt from the lien. The law 
supposes the party purchasing to know of the lien, and charges on 
him the consequences of such knowledge. If, when such a lien ex- 
ists, he voluntarily expends money on the premises, the same becomes 
subject to the lien. Any other rule would actually destroy the lien 
of a judgment on real estate. The principle upon which equitable 
liens are allowed to have priority, is that the contract was made before 
the docketing of the judgment. After that date the property, with 
any subsequent improvements, is subject to the lien.' 

So, money expended in improvements by the mortgagor or his 
grantee subsequent to the mortgage, cannot be given a hen prior to 
that of the mortgage.'' 

§ 290. Priority of mortgages over judgments. — The recording 
acts are only intended to protect hona fide purchasers ; that is to say, 
purchasers for a present and valuable consideration, who have notice 

1 of no facts except those which are disclosed by the public records. 
An unrecorded mortgage will therefore be entitled to a preference 

I over a subsequent assignment for the benefit of creditors, which was 
duly recorded,' or over a subsequently docketed judgment,' or over a 
subsequent attachment.' But a iona fide, purchaser under the dock- 
eted judgment would be protected against the unrecorded mortgage.' 

j Where the liens of a mortgage and of a judgment attach at the same 
time, the former is paramount.' 

- The lien of a mortgage unrecorded at the date of a judgment, but re- 
corded before a sale upon an execution issued thereon, is prior to the 
lien of the judgment, and the purchaser buys with constructive 
notice of the mortgage.' ' 

Where a judgment is marked "secured on appeal," or "hen sus- 
pended on appeal," pursuant to the provisions of our Code, a mort- 

' Per Ingraham, J., in Cook v. Kraft, 45 Pa. St. 172 ; FoUett v. Hall, 16 Ohio, 

3 Lans. 512 ; 41 How. 279 ; 60 Barb, iii ; 47 Am. Dec. 365. 

409; s. c. affi'd sub nam. Cook v. Banker, ° First National Bank v. Hayzlett, 40 

50 N. Y. 655. Iowa, 659 ; Campion v. Kille, 15 N. J. 

' Martin v. Beatty, 54 111. 100. Eq. 476 ; Rogers v. Abbott, 128 Mass. 

' Wyckoff V. Remsen, 11 Paige, 564. 102 ; Reed v. Ounby, 44 Mo. 204. 

* Jackson v. Dubois, 4 Johns. 216; ° Jackson v. Dubois, 4 Johns. 216. 

Schmidt v. Hoyt, i Edw. 652 ; Williams ' Tifft v. Buell, Gen. T., March, 1856, 

V. Tatnall, 29 111. 553 ; Britton's Appeal, cited in Clinton's Digest. 

' Holden v. Garrett, 23 Kans. 98. 



§§ 291-293. J PEiOEiTiES. 199 

gage thereafter given, thougli for an antecedent debt, acquires priority 
if the mortgagee acts in good faith.' 

In order that a mortgage lien shall take precedence of a judgment, 
it must be a valid and consummated lien. So, a mortgage executed 
but not delivered to or accepted by the mortgagee, will not displace 
an attachment,'' even though such undelivered mortgage has been 
recorded.' 

§ 291. Reforming mortgage. — A judgment being a general lien 
on the land of the debtor, is subject to every equity which exists 
against the land in the hands of the judgment debtor at the time of 
docketing the judgment.* So, where a defective mortgage is perfected 
or corrected, and subsequent judgments are recovered prior to such 
correction, the mortgage will be prior,° though this might depend 
upon the character of the mistake and the nature of the transaction." 

The description of property contained in a mortgage cannot be re- 
formed or changed to the prejudice of a iona fide purchaser, and a 
person who takes a junior lien for a past due indebtedness and, in con- 
sideration of the hen, extends the time of payment and also agrees to 
purchase and carry another mortgage executed by the debtor, is such a 
purchaser.' 

"Where, upon the renewal of a note, the mortgage securing the 
same was cancelled and a new one executed upon the same property, 
the lien of the second mortgage was held to date only from its execu- 
tion as against one who, without actual notice of any claim to the con- 
trary, purchased the property under a judgment which was a lien 
prior to the date of such execution.' 

§ 292. The doctrine of tacking. — It was an estabhshed doctrine 
in the English chancery that a lona fids purchaser, and without 
notice of any defect in his title at the time of the purchase, may law- 
fully buy any statute, mortgage, or incumbrance, and if he can defend 
by them at law, his adversary shall have no help in equity to set those 
incumbrances aside. And as mortgagees are considered in equity as 
purchasers pro tcmto, the same doctrine was extended to them, and a 

' Union Dime Savings [nstitution v. Kraft, 41 How. 279 ; 60 Barb. 409 ; 3 

Duryea, 67 N. Y. 84. Lans. 512. 

'^ Evans v. White, Adm'r, 53 Ind. i. * Van Thornily v. Peters, 26 Ohio St. 

' Woodbury v. Fisher, 20 Ind. 387. 471. 

* Kierstead v. Avery, 4 Paige, g. ' Post v. Embree, 54 Iowa, 14. 

* Burrs V. Burrs, 3 Ves. Jr. 576 ; Foster 'Washington Co. v. Slaughter, 54 
V. Fouat, a Serg. & R. 11 ; Cook v. Iowa, 265. 



200 MOETGAGES OF REAL PEOPEETT. [§ 293. 

mortgagee who had advanced his money without notice of any prior 
incumbrance, might, by getting an assignment of a statute, judgment, 
mortgage, or recognizance, protect iimself from any incumbrance 
subsequent to such statute, judgment, mortgage, or recognizance, 
though prior to his mortgage ; that is, he would be allowed to tack, 
or unite his mortgage to such old security, and would by that means 
be entitled to recover all moneys for which such security was given, 
together with the money due on his mortgage, before the interme- 
diate mortgagees are entitled to recover anything.' Thus if a third 
mortgagee without notice of a second mortgage, should purchase in 
the first mortgage, by which he would acquire the legal title, the 
second mortgagee would not be allowed to redeem the first mortgage 
without redeeming the third mortgage also." The general reasoning 
by which this doctrine was maintained was that as between the various 
incumbrancers the equities are equal, and that, in such case, the law 
must prevail.' This doctrine was known as the " equitable doctrine 
of tacking "; it has been disapproved by most writers as tending to 
gross injustice, and it stood until repealed in 1874, as a monument of 
the misleading tendency of technical rules which have no foundation 
in the principles of natural justice. 

The doctrine of tacking is inconsistent with our recording acts, 
and has never been adopted or recognized in this State. In the first 
place the English rule only protects a third mortgagee who purchases 
without notice of the second mortgage, and the record gives such 
notice ; in the second place the recording acts themselves control in 
regulating priority.* The doctrine of tacking has also been repudiated 
in other States having recording acts." 

§ 293. Several debts secured by the same mortgage. — A class 
of decisions in some of the other States seem to establish as an arbi- 
trary rule that where there are several holders of notes or bonds se- 
cured by one mortgage, and such notes or bonds mature at different 

' Bouvier's Law Diet., tit. Tacking ; 2 v. Carhart, Hopk. Ch. 234; Bank of 

Fonbl. Eq. 306. Utica v. Finch, 3 Barb. Ch. 293, 298. 

"^ Story's Eq. Jur. § 412. ^ « Osborn v. Carr, 12 Conn. 196 ; Aver- 

8 Id. § 413. _ ill V. Guthrie, 8 Dana, 82 ; Brazee v. 

* Grant V. Bissett, i Cai. Cas. in Er. Lancaster Bank, 14 Ohio, 318'; Ander- 

112; Frostv. Beekman, i Johns. Ch. 298, son v. Neff, 11 S. & R. 208 ; Thompson 

299 ; Parkistv. Alexander, I Id. 398, 399; v. Chandler, 7 Me. 381; Siter v. Mc- 

McKinstry v. Marvin, 3 Id. 466 ; Burnet Clanachan, 2 Gratt. 305 ; Chandler v. 

V. Denniston, 5 Id. 35 ; St. Andrew's Dyer, 37 Vt. 345. 
Church V. Tompkins, 7 Id. 14 ; Brigden 



§ 294.] PEIOEITIES. 201 

dates, those first falling due liave priority of lien, for the reason that 
the power to first foreclose implies such priority.' They treat the 
holders of such notes and bonds as having successive mortgages whose 
liens arise in the order of agreed payment. After all, these decisions 
probably rest upon the idea of intention and equity, although they 
seem to infer the intention somewhat arbitrarily from the one fact 
of a difference in the maturing of the notes and bonds. While it 
may be granted that such a fact is one to be taken into consideration 
and have its weight, it should not be deemed as controlling or to serve 
as the basis of an arbitrary and inelastic rule.'' 

The authorities are not uniform, and numerous cases hold that 
where a mortgage is made to secure two or more obligations, each 
must, in the absence of special agreement, shaxe pro rata in the fund 
irrespective of their dates of maturity.' 

"Where two or more debts are secured by as many mortgages exe- 
cuted at the same time, they take equal liens and one does not gain 
priority by its earlier maturity.* 

And a single mortgage given to secure obligations to difEerent per- 
sons, maturing at difEerent times, has been held, in Indiana, to be 
equivalent to the simultaneous giving of separate mortgages, and no 
priority was allowed, although in that State the rule is otherwise if 
the notes had been payable to the same party and had passed into the 
hands of different owners.' 

§ 294. Assignment of part of debt secured by mortgage. — It 
has been determined in some other States that where a mortgage se- 
cures several notes, and the mortgagee assigns one of them, retaining 
the others, the claim first assigned is entitled to priority of payment." 

' Isett V. Lucas, 17 Iowa, 503 ; Ayers ° Per Finch, J., in Granger v. Crouch, 

V. Rivers, 64 Iowa, 543 ; Koester v. 86 N. Y. 494, 500. 

Burke, 81 111. 436 ; Funk v. McReynolds' ' Wilson v. Eigenbrodt, 30 Minn. 4 ; 

Adm'rs, 33 Id. 481 ; Moore v. Titman, English v. Carney, 25 Mich. 178 ; Mc- 

33 Id. 358 ; Flower v. Elwood, 66 Id. Curdy v. Clark, 27 Mich. 445 ; Wilcox 

438 ; Gardner v. Diederichs, 41 Id. 158 ; v. Allen, 36 Mich. 160 ; Hancock's Ap- 

Humphreys v. Martin, 100 Id. 592 ; peal, 34 Pa. St. 155 ; Cage v. Her, 5 

Stanley v. Beatry, 4 Ind. 134 ; Mur- Smedes & M. 410 ; 43 Am. Dec. 521 ; 

dock V. Ford, 17 Id. 52 ; Hough v. Belding v. Manly, 21 Vt. 550. 

Osborne, 7 Id. 140 ; Gerber v. Sharp, 72 * CoUerd v. Huson, 34 N. J. Eq. 38 ; 

Ind. 553 ; Roberts v. Mansfield, 32 Ga. Cain v. Hanna, 63 Ind. 408 ; Granger v. 

228 ; State Bank v. Tweedy, 8 Black. Crouch, 86 N. Y. 494. 

(Ind.) 447 ; 46 Am. Dec. 486 ; Richard- ' Shaw v. Newsam, 78 Ind. 335. 

son V. McKim, 20 Kans. 346 ; Aultman ' Bryant v. Damon, 6 Gray (Mass.) 564 ; 

V. McGregor, 31 Kans. 329 ; Winters v. Foley v. Rose, 123 Mass. 557 ; Cullum 

Bank, 33 Ohio St. 250. v. Erwin, 4 Ala. 452 ; Knight v. Ray, 75 



203 MORTGAGES OF REAL PROPERTY. [§ 294. 

But this doctrine has been rejected in this State/ and in many oth- 
ers." In making the assignment it is competent for the assignor, with 
the assent of the assignee, to award such priority as he may see fit to 
each of the.notes;' and, if there is no special agreement, the court 
will nevertheless award such priority as under the special circum- 
stances of the case will be found to be in accord with the intention 
of the parties, either as actually expressed or as derived from the nat- 
ural equity of the situation." Thus, if one of several notes so secured 
is assigned by the mortgagee upon a representation that it is a first 
Hen, such representation will make it so as against the assignor.^ 

In the absence of agreement or of special circumstances, showing a 
contrary intention, or creating a different equity, the assignee of a 
fractional part of a debt secured by mortgage, will tskej)ro rata with 
the holders of the other parts where the proceeds of the property 
are not suflBeient to pay all.° 

The circumstance that the assignor has or has not guaranteed the 
payment of a note does not affect the question of priority of lien, and 
where one of two notes secured by the same mortgage was assigned 
in the usual form, and the other was transferred by indorsement, the 
mortgagee was held entitled to be protected as against the indorsed 
note to the extent of a^ro rata share in the security.' 

Where an account for future advances was secured by mortgage, 
and a note for part of the account was taken and transferred to one 
person, and the mortgage and account was afterward transferred to 
another, who was ignorant of the note, each was held entitled to a 
pro rata share of the proceeds of the mortgaged property.' 

Where a grantee of an equity of redemption, who was not person- 
ally obligated for the mortgage debt, paid and took up one of several 
notes secured by the mortgage, under an agreement with the mortgagee 

Ala. 383 ; Roberts v. Mansfield, 32 Ga. '' Per Finch, J. , in Granger v. Crouch, 

228 ; Whitehead v. Fisher, 64 Tex. 638. 86 N. Y. 494, 498 ; Mechanics' Bank v. 

' Granger v. Crouch, 86 N. Y. 494. Bank of Niagara, 9 Wend. 410 ; Stafford 

'^ Johnson v. Brown, 31 N. H. 405; v. Van Rensselaer, 9 Cow. 316 ; Vreden- 

Moore v. Ware, 38 Me. 496 ; Hancock's bergh v. Burnet, 31 N. J. Eq. 229 ; Grat- 

Appeal, 34 Pa. St. 155 ; Swartz v. List, tan v. Wiggins, 23 Cal. 16. 

13 Ohio St. 419. ' Vredenbergh v. Burnet, 31 N. J. Eq. 

' Ellis' Adm'r v. Lamine, 42 Mo. 153 ; 229. 

Bank of England v. Tarleton, 23 Miss. ° McLean & Jackson's Appeal, 103 Pa. 

173 ; Grattan v. Wiggins, 23 Cal. 16 ; St. 255 ; Patrick's Appeal, 105 Pa. St. 

Noyes v. White, 9 Kans. 640 ; Solberg v. 356. 

Wright, 33 Minn. 224 ; Walker v. De- ' English v. Carvey, 25 Mich. 178. 

ment, 42 111. 272. " Adger v. Pringle, 11 S. Car. 527. 



§ 295. J PEiOEiTiES. 203 

that he might hold them in the same manner that the mortgagee had 
held them, it was held that he was entitled to the same priority of 
lifen that a stranger would have who took an assignment thereof.' 

§ 295. Priority awarded to defeat fraud. ^ — The priorities of suc- 
cessive mortgage liens are sometimes controlled to promote justice 
and prevent fraud. Thus, where the parties to a mortgage agreed 
that a new mortgage should be executed to cure a defect in the title, 
and on the same day that the new mortgage was given, but prior 
thereto, a mortgage was fraudulently given by the mortgagor to his 
father-in-law, which was first recorded, it was held that the latter 
security must give way to the other lien.° So, where a trustee unlaw- 
fully invested trust funds in a mortgage upon lands upon which he 
held a mortgage of older date, it was adjudged that equity would give 
priority to the second mortgage over the first, even in the hands of 
an assignee having notice of the facts.' 

Where two mortgages were made to a vendor of land at the time 
of the delivery of the deed, and were both recorded at the same 
minute, one being for $1,000, payable in five years, and containing a 
recital that it was given for purchase money, and the other being for 
$2,000, payable in ten years, and not containing any such recital; 
and the mortgagee sold the $1,000 mortgage to a person to whom he 
represented that it was a first mortgage, and that he had purposely 
made it so, so that he could sell it, it was held that such repre- 
sentations gave priority to the $1,000 mortgage, and that it retained 
such priority against a subsequent lona fide purchaser of the $2,000 
mortgage.* 

If a mortgagee of land represents to a third person that the debt, 
which his mortgage was given to secure, is paid or satisfied, and that 
nothing is due on the mortgage, and such person, by reason of that 
representation, relinquishes rights and takes a mortgage on the land, 
his mortgage will be prior to the first, though that was on record 
when the representation was made.' 

The owner of a second mortgage who stands by in silence while 
the mortgagor induces the first mortgagee to release his lien, and to 
accept a third mortgage, in reliance upon a false statement that it is 



1 Morrow v. U. S. Mortgage Co., 96 ' Shuey v. Latta, 90 Ind. 136. 

Ind. 21. *Lane v. Nickerson, 17 Hun, 148. 

' Eggeman v. Harrow, 37 Mich. 436 ; ' Piatt v. Squire, 53 Mass. (12 Mete.) 

Waldo V. Richmond, 40 Mich. 380. 494. 



204 MORTGAGES OF BEAL PROPERTY. [§§ 296-297. 

next to the one released, will be postponed to the mortgagee attempted 
to be defrauded.' 

§ 296. Agreements for priority where there are intermediate 
liens. — Where the holder of a first lien agrees to surrender his prior- 
ity to the holder of a third, the effect of such an agreement is, not 
to give the last lien a preference over the intermediate lien or to 
give it an interest in the first one. If the first lien is satisfied 
and paid, the demands of the stipulation are fully met, and the owner 
of the last lien has all his rights secured to him by permitting him to 
proceed against the property, and he can have no interest in the 
money paid by the mortgagor or owner of the premises. If, in such 
a case, foreclosure and sale should be necessary, and the proceeds of 
such sale should be insufficient to pay all of the liens, so much of such 
proceeds as would otherwise be applicable upon the first hen must be 
applied to the last as will be necessary to satisfy it.' 

In Sayre v. Hewes (32 W. J. Eq. 662), the complainant was a judg- 
ment creditor with an execution hen junior to two prior chattel mort- 
gages. The first chattel mortgage was filed in the wrong county, and 
the fihng was therefore not available ; the second chattel mortgage 
was filed in the proper county, but the second mortgagee had actual 
notice of the first lien and therefore took subject to it. The execu- 
tion lien was prior to the first mortgage because it had not been 
properly filed, and it was adjudged that since the execution creditor 
could not be advanced before the first without advancing him also be- 
fore the second, his Ken must of necessity be advanced to the first 
place as against both the first and second incumbrances. 

§ 297. Assignees bound by equities controlling priority. — The 
principle is fully settled that an assignee of a mortgage must take it 
subject to the equities attending the original transaction. If the 
mortgagee cannot enforce it, then the assignee has no greater rights. 
The true test is to inquire, what can the mortgagee do by way of 
enforcement of it against the property mortgaged ; and what he can 
do, the assignee can do, and no more. As a purchaser of a chose in 
action, he must always abide the case of the person from whom he 
buys, and he stands entirely in the place of the latter." Where the 



' Stafford v. Ballou, 17 Vt. 329. ' Per Miller, J., in Crane v. Turner, 

^ Taylor v. Wing, 84 N. Y. 471, rev'g 67 N. Y. 437, 440 ; Trustees of Union 

23 Hun, 233. See also Hinchman v. College v. Wheeler, 61 N. Y. 88 ; Greene 

Stiles, 9 N. J. Eq. (i Stock.) 361. v. Warnick, 64 N. Y. 220. 



§ 297.] PEI0EITIE8. 205 

assignor of a mortgage has knowledge of facts that will affect its 
priority with respect to other liens on the property, the assignee will 
be charged by and affected with such knowledge, even though he has 
no actual notice.' 

An agreement between a mortgagee and the holder of a prior judg- 
ment giving the mortgage priority, affects and attaches itself to the 
securities whoever thereafter owns them, and this without any record 
of such agreement or memorandum made of it on the docket of the 
judgment. A purchaser at an execution sale under such judgment 
would get no better title than the judgment actually gave him, and 
that would be a title subject to the mortgage. The docket of a judg- 
ment is not for the protection of purchasers under the judgment. It 
is for the benefit of the judgment creditor and the protection of pur- 
chasers from the judgment debtor.'' 

It has been doubted whether an assignee of a mortgage is charged 
with knowledge of an agreement for priority executed after the in- 
ception of the mortgage,' but he has been held bound by the estoppel 
of his assignor in dealing with another security of equal date and 
record by reason of which priority was awarded to it." 



' Crane v. Turner, 67 N. Y. 437, affi'g ' Bank for Savings v. Frank, 56 How. 

7 Hun, 357; Simsv. Hammond, 33 Iowa, 403, afB'd45 N. Y. Super. (13 J. & S.)404. 

368; Mason V. Ainsworth, 58 111. 163. *Lane v. Nickerson, 17 Hun, 148. 

^ Frost V. Yonkers Savings Bank, 70 And see Frost v. Yonkers Savings Bank 

N Y. 553, 560, rev'g 8 Hun, 26. sutra 



CHAPTEE X. 



ASSIGNMENT OP MOETGAaES, 



J 298. How an assignment of a. mort- 
gage can be made. 

299. Assignment by one of several 

mortgagees. 

300. Assignment of debt carries with 

it the mortgage lien. 

301. Several notes secured by the same 

mortgage. 

302. In strictness the lien not trans- 

ferable apart from the debt. 

303. Where there is no personal lia- 

bility. 

304. Transfer of mortgage construed 

to assign the debt. 

305. The bond should be delivered on 

assignment. 

306. Presumption is against a parol 

assignment. 

307. Noting assignment on margin of 

record. 

308. Transfer of negotiable note se- 

cured by mortgage. 

309. Lien controlled by recording acts, 

though to secure negotiable pa- 
per. 

310. Assignee of mortgage takes sub- 

ject to equities of debtor. 

311. Where the question is as to valid- 

ity of the debt. 

312. Distinction between latent equi- 

ties atjd equities of the obligor. 

313. Equities of third persons claim- 

ing rights in the property. 

314. A review of some of the cases. 

315. Curious questions will be pre- 

sented. 



3 316. Equities of third persons claim- 
ing rights in the mortgage. 

317. The following cases will illus- 

trate. 

318. A similar question. 

319. These principles had been ap- 

plied. 

320. In First National Bank of Corry 

V. Stiles. 

321. When real or personal property 

is obtained from one by fraud. 

322. Limitations of last-mentioned 

rule. 

323. Rules for determining what equi- 

ties are destroyed by assign- 
ment. 

324. When mortgagor will be estopped 

from defending against assignee. 

325. Estoppel a protection to extent 

only of consideration. 

326. Form of statement to create es- 

toppel. 

327. The statement must have been 

acted upon. 

328. The statement must be believed. 

329. The statement must be 'fairly ob- 

tained. 

330. An estoppel may also be created 

by conduct, 

331. Estoppel by statements of an 

agent. 

332. Who are bound by such estoppel. 

333. What covenants are implied in an 

assignment of a mortgage. 

334. Notice of the assignment of a 

mortgage should be given to the 
mortgagor. 



§ 298. How an assignment of a mortgage can be made. — As 

a mortgage is a mere incident of tlie debt which it is intended to 
secure,^ it follows that whatever is sufficient to transfer the title to 



' Green v. Hart, i Johns. 580 ; Jack- 
son V. Blodgett, 5 Cow. 202 ; Jackson v. 
Bronson, ig Johns. 325 ; Wilson v. 



Troup, 2 Cow, 231 ; Cooper v. Newland, 
17 Abb. 342. i 



§ 298.] ASSIGNMENT OF MOETaAGES. 207 

the debt will also transfer the interest of the mortgagee in the land.' 
Upon this principle, since one of several executors or joint creditors 
can assign a debt, one of them can also assign the security which 
accompanies the debt." Upon a like principle, the debt being the 
principal obligation, a guaranty of its payment will generally pass 
with an assignment of the debt as a security collateral thereto, and a 
formal assignment of the guaranty will not be necessary to vest 
the same in the assignee of the bond ;' but this wiU not apply 
unless the covenant of guaranty is such that it can properly be 
assigned.* 

An assignment of a mortgage and of the debt secured by it may be 
by parol,° and no seal is required on an assignment of a bond and 
mortgage." 

An assignment executed in blank is valid, the person to whom it 
is delivered being authorized by the mortgagee to fill in the name of 
a mortgagee, and a purchaser, acting in good faith, wiU be protected, 
though the authority of the agent is to do nothing but deliver the 
assignment.' 

A mortgagee does not lose his interest in the mortgage by assigning 
it as collateral security for a debt, even though he stipulates in the 
assignment that he is to forfeit all such interest if he fails to pay the 
debt on a specified day.' And he retains such interest if he takes the 
note of the assignee for the balance due him, payable when the mort- 
gage is collected.' 

A mortgage given to indemnify the mortgagee against a contingent 
liability, is assignable.'" 

A foreign executor or administrator may make a valid assignment of 
a mortgage on lands in this State without qualifying under our laws." 

' Wyman v. Smead, 31 How. i ; Lang- ^ McLaren v. Watson's Ex'rs, 26 Wend, 

don V. Buel, 9 Wend. 80 ; Jackson v. 425 ; Craig v. Parkis, 40 N. Y. 181 ; 

Blodgett, 5 Cow. 202 ; Parmelee v. Claflin v. Ostrom, 54 N. Y. 581 ; Cady 

Dann, 23 Barb. 461 ; Pattison v. Hull, v. Sheldon, 38 Barb. 103. 

9 Cow. 747 ; Lawrence v. Knap, i Root * Smith v. Starr, 4 Hun, 123. 

(Conn.) 248 ; i Am. Dec. 42 ; Fassett v. ^ Kiff v. Weaver, 94 N. C. 274. 

Mulock, 5 Cal. 466 ; Johnson v. John- ° Roder v. Ervin, i Montana, 632. 

son, 81 Mo. 331 ; Adair v. Adair, 78 ' Phelps v. Sullivan, 140 Mass. 36 ; 

Mo. 630 ; Pickett v.- Jones, 63 Mo. 195 ; White v. Duggan, Id. 18. 

Savings Bank v. Grewe, 84 Mo. 477 ; ' Hughes v. Johnson, 38 Ark. 285. 

Ford V. Stuart, 15 Neb. 92. " Fithian v. Corwin, 17 Ohio St. 118. 

^ Bogert v. Hertell, 4 Hill, 492 ; s. c. '" Carper v. Munger, 62 Ind. 481. 

9 Paige, 52; 3 Edw. Ch. 20; Everit v. " Peterson v. Chemical Bank, 29 How. 

Strong, 5 Hill, 163. 240 : s. c. 32 N. Y. 21 ; Smith v. Tif- 



208 MORTGAGES OF EEAL PEOPEETY. [§§ 299-300. 

§ 299. Assignment by one of several mortgagees. — Where a 
mortgage is made to a copartnership firm composed of several per- 
sons, it may be assigned by any one of them.' So, a mortgage made 
to two or more persons to secure a debt payable to them jointly, may 
be assigned by either of them on behalf of both." 

It is well settled that if a man appoints several executors, they are 
esteemed in law as but one person representing the testator, and that 
acts done by any one of them which relate to the delivery, gift, sale, 
or release of the testator's goods, are deemed the acts of all.' Accord- 
ingly, an assignment of a mortgage by one of several executors will 
be valid and effectual.'' 

The rule which permits one of several executors to transfer a debt 
due to the estate which he represents, does not apply in the case of 
several trustees who are not executors. Thus, a mortgage made to 
certain persons as trustees of an association not incorporated, can be 
transferred only by an assignment executed by all of the trustees." 

§ 300. Assignment of debt carries with it the mortgage lien. — 
In the absence of an express agreement to the contrary, an assign- 
ment of a note or other evidence of debt secured by mortgage, how- 
ever informally made, will carry with it the mortgage lien." 

The assignee of the debt secured by mortgage is entitled to the 
benefit of the security, though he did not know of its existence at the 
time of the assignment.' 



fany, i6 Hun, 552. Contra, Cutter v. Green v. Hart, i Johns. 590 ; Evertson 

Davenport, 18 Mass. (i Pick.) 81. v. Booth, 19 Johns. 491 ; Ford v. Stuart, 

' Everit v. Strong, 5 Hill, 163, affi'd 19 Johns. 342 ; Briggsv. Dorr, 19 Johns. 

7 Hill, 585 ; Bogart v. Hertell, 4 Id. 492 ; 95 ; Pattison v. Hull, 9 Cow. 747 ; Bar- 
s. c. 9 Paige, 52. clay v. Blodgett, 5 Cow. 202 ; Langdon 

' Bruce V. Bonney, 12 Gray (Mass.) v. Buel, 9 Wend. 80 ; Holmes v. French, 

107. 70 Me. 341 ; Whittemore v. Gibbs, 24 

2 Bac. Abr. Executors and Adminis- N. H. 484 ; Keyes v. Wood, 2i Vt. 331 ; 

trators D. and cases cited. Roberts v. Halstead, 9 Pa. St. 32 ; 49 

* Bogart V. Hertell, 4 Hill, 492 ; Am. Dec. 541 ; Jerry v. Woods, 6 Sm. 

Wheeler v. Wheeler, 9 Cowen, 34 ; Mur- & Marsh (Miss.) 139 ; 45 Am. Dec. 274 ; 

ray v. Blatchford, i Wend. 583 ; Doug- Johnson v. Johnson, 81 Mo. 331. Where 

las V. Satterlee, 11 Johns. 16 ; Ex parte deeds of trust, are used instead of mort- 

Rigby, 19 Ves. 462. gages, the same principle applies, and 

' Chapin v. First Universalist Church, the lien passes by an assignment of the 

8 Gray, 580; Austin v. Shaw, 10 Allen, debt. Stiger v. Bent, iii 111. 328. An 
552 ; Webster v. Vandeventer, 6 Gray, equitable assignment of the note has the 
428. same effect to transfer the security. 

° Parmelee v. Dann, 23 Barb. 461 ; Sedgwick v. Johnson, 107 111. 385. 
Neilson v. Blight, i Johns. Cas. 205 ; ' Betz v. Heebner, i Penna. 280. 



§ 301.J ASSIGNMENT OF MORTGAGES. 209 

An assignment of a judgment for a debt carries tlie debt, and if 
the debt is secured by a mortgage it carries also the mortgage interest. 
So, if the assignment be of only a part of the judgment, a propor- 
tionate interest in the mortgage passes.' 

An assignment by a member of a copartnership of " all debts due 
to the firm," carries a mortgage given to secure a firm debt.^ 

The assignee of a debt secured by a reservation in the deed of the 
vendor, may enforce such lien without any formal transfer of it.° 

A mortgage of indemnity given to a surety does not pass with a 
transfer of the debt, and the surety can release the mortgage ; although, 
if unreleased, it would have inured to the benefit of the creditor and 
of his assignee.* 

§ 301. Several notes secured by the same mortgage. — Where 
a mortgage is given to secure payment of several notes or demands, 
it is an incumbrance upon the land for the security of all and each 
of the notes in whose hands soever they may legally be until all are 
paid." An assignment of one of the notes or claims so secured will 
transfer a proportionate part of the Uen,° unless an agreement is made 
to the contrary, which agreement will. then control.' So, an assign- 
ment of part of the notes secured by a mortgage, accompanied by an 
assignment of the mortgage itseK, and of all the mortgagor's right to 
the premises conveyed thereby, does not extinguish his interest in 
the mortgage for one of the notes retained by him and subsequently 
assigned to another." 

Where a note and a mortgage to seciu'e it were made and the mort- 
gage was duly recorded, and the note was indorsed and transferred 
by the mortgagee, who thereafter also sold another note of simOar 
tenor to a person without notice, giving him also an assignment of 
the mortgage, it was held that the holder of the first note had the 
better title to the security." 

If a mortgage is given to secure negotiable promissory notes, and 
the notes are transferred, the mortgagee and all persons claiming 



' Pattison v. Hull, g Cow. 747 ; Way- 631 ; Stanley v. Beatty, 4 Ind. 134 ; 

man v. Cochrane, 35 111. 152. Sample v. Rowe, 24 Ind. 208 ; Phelan 

^ Du Bois' Appeal, 38 Penna. St. 231. v. Olney, 6 Cal. 478 ;, Belding v. Manly, 

' Lindsey v. Bates, 42 Miss. 397. 21 Vt. 550 ; Smith v. Stevens, 49 Conn. 

*Jonesv.QuinnipackBank,29Conn.25. 181. 

5 Johnson v. Brown, 31 N. H. 405. ' Rolston v. Brockway, 23 Wis. 407. 

« Gould V. Marsh, i Hun, 566 ; 4 T. & 'Page v. Pierce, 26 N. H. 317. 

C. 128 ; Henderson v. Herrod, 18 Miss. " Morris v. Bacon, 123 Mass. 58, 

14 



210 MOET&AGES OP REAL PKOPEETY, [§ 302. 

under Mm will hold the mortgaged property in trust for the holders 
of the notes,' although such holders did not know of the mortgage.' 
So, where several debts secured by one mortgage have become the 
property of different persons, and the assignee of the mortgage has 
foreclosed and has thereby acquired legal title to the property, he 
holds it with its rents and profits in trust for the holders of the debts, 
according to their respective amounts.' 

§ 303. In strictness the lien not transferable apart from the 
debt. — A mortgage is not considered a conveyance of land within 
the statute of frauds, and it may be assigned by parol.* The assign- 
ment must, however, be of the bond or evidence of debt as weU as 
of the mortgage, since the transfer of the mortgage without the debt 
is a nullity, and no interest is acquired by it. The security cannot 
be separated from the debt and exist independently of it ;° and it is a 
legal maxim that the incident shall pass by the grant of the principal, 
but not the principal by the grant of the iacident." If, therefore, 
the wife of a mortgagor is also the owner of the mortgage, the mort- 
gage will not be assigned to a purchaser by a conveyance in which 
she joins, nor will her lien be inferior to a subsequent mortgage in 
which she joins in order to bar her inchoate right of dower ;' and 
the same rule will apply where one of several joint owners of prop- 
erty holds a mortgage upon it, and joins in a deed of all his estate, 
title, and interest.' 

The pght of a mortgagee to hold the mortgaged premises as secu- 
rity for his debt does not pass by a conveyance of " all his lands, tene- 
ments, and hereditaments." ° 

In Wrniser v. Gary (T6 JST. T. 526, affi'g s. c. 12 Hun, 403), a bond 
and mortgage was executed by a wife as collateral security for her 

' Jordan v. Cheney, 74 Me. 35g. mar v. Bill, 5 Johns. Ch. 570 ; Cooper v. 

' Keyes v. Wood, 21 Vt. 331 ; Roberts Newland, 17 Abb. 342. 

■V. Halstead, 9 Penna. St. 32 ; 49 Am. * Merritt v. Bartholick, 36 N. Y. 44 ; 

Dec. 541. s. c. 47 Barb. 253; Carpenter v. O'Dough- 

' Johnson v. Candage, 31 Me. 28. erty, 67 Barb. 397. 

' Allerton v. Lang, 10 Bosw. 362 ; Be- ' Power v. Lester, 23 N. Y. 527 ; s. c. 

.dell V. Carll, 33 N. Y. 581 ; Westerlo v. 17 How. 413 ; Gillig v. Maas, 28 N. Y. 

DeWitt, 36 N. Y. 340; Mack v. Mack, igijVan Amburgh v. Lester,i6Hun,205. 

3 Hun, 323 ; s. c. 5 N. Y. Sup. (T. & C.) ' Aymar v. Bill, 5 Johns. Ch. 570 ; Pur- 

528 ; Wilson v. Kimball, 27 N. H. 300; dy v. Huntington, 42 N. Y. 334; see, 

Pease v. Warren, 29 Mich. 9 ; Runyan centra, Williams v. Thorn, 11 Paige, 459; 

'V. Mersereau, 11 Johns. 534 ; 6 Am. Dec. Swan v. Yople, 35 Iowa, 248. 

393- ' Mack v. Wetzlar, 39 Cal. 247, 254 ; 

'Jackson v. Willard, 4 Johns. 41 ; Ay- Sims v. Hammond, 33 Iowa, 368. 



§§303-304.] ASSIGNMENT OF MORTGAGES. 211 

husband's debt. The mortgagee assigned the bond and mortgage to 
bona fide purchasers, and afterward received the debt due him from 
the husband, and promised to discharge the mortgage. In an action 
to foreclose the mortgage, it was held that the assignment of the bond 
and mortgage was an assignment of a mere security, while the prin- 
cipal debt remained untransferred, and that it was inoperative. The 
debt of the husband being cancelled, the mortgage was not supported 
by any consideration. A different rule would have been applied if 
the bond and mortgage had been given not as security for, but in pay- 
ment of, the husband's debt. 

§ 303. Rule where there is no personal liability. — The rule 
that the mortgagee's interest in the land is not capable of being as- 
signed by itself, must be qualified so as to include only cases where 
there is a mortgage debt, for a mortgage hen may exist without any 
personal obhgation. It is provided by statute that " no mortgage 
shall be construed as implying a covenant for the payment of the sum 
intended to be secured ; and where there shall be no express covenant 
for such payment contained in the mortgage, and no bond or other 
separate instrument to secure such payment shall have been given, 
the remedies of the mortgagee shall be confined to the lands mentioned 
in the mortgage." ' The assignment of a mortgage given without a 
bond or other extrinsic evidence of debt, and containing no express 
covenant to pay, transfers to the assignee all of the mortgagee's claim 
under the mortgage ; that is to say, his remedy against the land.' And 
while an assignment of the mortgage without the debt is inoperative 
at law, it wiU be protected in equity in order to carry out the mani- 
fest intention of the parties.' 

§ 304. Transfer of mortgage construed to assign the debt. — 
Although an assignment of a mortgage apart from the bond is not 
availing, still where a contract is made for an assignment of the mort- 
gage, the court may infer an obligation to assign the bond also,* and a 
power of attorney authorizing the assignment of mortgages, impUedly 
includes the assignment of bonds accompanying the mortgages.' So, 
an assignment of a mortgagee's interest in the mortgaged premises' 



' I R. S. 738, § 139. Van Rensselaer, 44 How. 368 ; Carpen- 

' Hone V. Fisher, 2 Barb. Ch. 560 ; ter v. O'Dougherty, 67 Barb. 397. 

Severance v. Griffith, 2 Lans. 38 ; Caryl ' Raynor v. Raynor, 21 Hun, 36. 

V. Williams, 7 Lans. 416; Coleman v. * Foster v. Van Reed, 70 N. Y. 19. 

' Feldman v. Beier, 78 N. Y. 293. 



212 MOKTGAGES OK KEA.L PEOPEETY. [§§305-306. 

lias been held to carry with it the right to receive payment of notes 
secured by the mortgage.' And a deed of conveyance of the mort- 
gaged property executed by the mortgagee, duly executed and re- 
corded, has been awarded priority over a prior unrecorded assignment 
of the debt and mortgage.' 

If a mortgage is assigned without any express mention of the debt, 
it would nevertheless be presumed to be the intention of the parties 
to transfer the debt as well, if it has not already been assigned to 
another person.' 

"Where land is mortgaged by an absolute deed with a secret defeas- 
ance, an absolute conveyance of the premises by the mortgagee to a 
third person amounts to an assignment of the mortgage.* 

And where the mortgagee has made an effort to foreclose his mort- 
gage, which, by reason of irregularities in his proceedings, is not suffi- 
cient to cut off all of the persons having rights in the equity of re- 
demption, the purchaser acquires by virtue of such proceedings, and 
as against all of the persons not cut off, aU of the rights of an as- 
signee of the mortgage and of the debt secured by it.' 

§ 305. The bond should be delivered on assignment. — Since 
the transfer of the debt carries with it the mortgage, it is quite im- 
portant for the purchaser of the mortgage to require the production 
and delivery of the bond where there is one. If he neglects to do so, 
he is said to be chargeable with negligence fatal to his right to recover 
upon the mortgage as against a prior purchaser who had acquired 
possession of the written evidence of the debt, and in this respect he 
is not protected by the recording act." 

§ 306. Presumption is against a parol assignment. — ^While a 
mortgage, and the debt which it secures, may be assigned by delivery, 
the possession of a bond and mortgage, coupled with proof of an 
advance of money, is not in itself sufficient to establish a transfer, 
either absolute or conditional. In England, a very common mode of 



' King V. Harrington, 2 Ailcens (S. C.) istown, i8 Pa. St. 394 ; Fletcher v. Car- 

33 ; 16 Am. Dec. 675. penter, 37 Mich. 412. 

' Welch V. Priest, go Mass. (8 Allen) * Halsey v. Martin, 22 Cal. 645. 

165. ' Hart V. Wandle, 50 N. Y. 381 ; Rob- 

' Cooper V. Newland, 17 Abb. 342; inson v. Ryan, 25 Id. 320 ; Benedict v. 

Merritt v. Bartholick, 36 N. Y. 44 ; s. c. Oilman, 4 Paige, 58. 

•47 Barb. 253 ; Ross v. Terry, 63 N. Y. "Kellogg v. Smith, 26 N. Y. 18; Clark 

613; Northampton Bank v. Balliet, 8W. v. Iglestrom, 51 How. 407; see Bergen 

& S. (Pa.) 311 ; Phillips v. Bank of Lew- v. Urbahn, 83 N. Y. 49. 



§ 307.] ASSIGNMENT OF MOETGAGES. 213 

securing a loan of nioney is by depositing the title deeds of the bor- 
rower with the lender for that purpose, and such deposit constitutes 
a valid hen in equity ; but here mortgages are very rarely transferred 
by an agreement and dehvery without writing, and, in the absence of 
written evidence, there is a presumption against any transfer." There 
must be an intention so to transfer accompanying the dehvery. 
Where there is an intention to have a written assignment, a mere 
manual delivery does not pass title," and the written paper must not 
only be executed, but it must also be delivered." 

A transfer has, however, been inferred where a bond and mortgage 
were found among the papers of the deceased wife of the mortgagor, 
who was the daughter of the mortgagee, also deceased. Parol proof 
was also furnished of declarations on the part of the mortgagee of an 
intention to give the mortgage to his daughter.* 

§ 307. Noting assignment on margin of record. — It is desir- 
able that the assignment of a mortgage should contain a description 
sufficiently definite to identify what is intended to be transferred. If 
possible, the time and place of the record of the mortgage should be 
set out, so as to enable the clerk to make a memorandum of the 
assignment on its margin. An omission of these precautions may 
operate to create great confusion if not forfeiture of rights. 

In Moore v. Slocm (50 Barb. 442),' assignments of mortgages were 
put upon record, which described the mortgages only by the names 
of the parties to them and their amounts ; no memoranda of the as- 
signments were msi.de on the margins of the original mortgages, and 
no acttoal notice was given to the prior mortgagees, and the assignees 
were held foreclosed by sales in actions to which they were not parties, 
and of which they had no notice. So, also, in Yiele.Y. Judsonil^ 
Hun, 328),° an assignment with an indefinite description was recorded 
at the time of recording the mortgage ; the assignment was not noted 
on the margin of the mortgage, and the clerk thereafter received a 
certificate of satisfaction executed by the mortgagee, and discharged 
the mortgage of record. The assignee of the mortgage knowing of 
its discharge took no steps to restore it, and he was held by the 
General Term to forfeit his priority of lien in favor of a junior in- 



' Bowers v. Johnson, 49 N. Y. 432. ' Overruled in Viele v. Judson, 82 N. 

' Strause v. Josephthal, 77 N. Y. 622. Y. 38. 

' Rose V. Kimball, i5 N. J. Eq. 185. * Reversed in Viele v. Judson, 82 N. Y. 

* Hackney v. Vrooman, 62 Barb. 650. 32. 



214 MOETaAGES OP BEAL PROPEKTT. ■ [§ 308. 

cumbrance in good faith. This latter decision was reversed by the 
Court of Appeals, and in doing so the ruling in Moore v. Slocm 
(supra) was also distinctly and by name overruled. In doing so, 
Finch, J., remarked : " It is claimed, however, that the assignment 
to Viele was so imperfect that the clerk could not note it on the record 
of the mortgage, and, therefore, it was not constructive notice. 
The assignment contained the name of the assignor, and of the maker 
of the mortgage, the date of the same, and a covenant of the amount 
due. Unless, which is not pretended, there was some other mortgage 
of Decker bearing the same date, there was no uncertainty or am- 
biguity. It was entirely possible for the clerk to find this mortgage 
on his records, and be sure it was the one referred to. No rule com- 
pels a statement of the place of record or a description of the lands 
to make it the duty of the clerk to record. He did do so in fact. That 
he did not note the assignment in the margin of the record is of no 
consequence. He might have done so if he had pleased. We have 
■been referred to no statute making it the duty of the clerk to thus 
note the record of an assignment in the margin of the mortgage. It 
is purely a matter of convenience. Whether done or not, in no 
manner affects the rights of the assignee. For his protection the law 
only required his assignment to be recorded. It did not impose the 
additional condition of a note on the record." ' 

§ 308. Transfer of negotiable note secured by mortgage. — 
Keasons of pubhc policy have created and sustained the rule that a 
honafide purchaser of commercial paper before maturity will be pro- 
tected against defenses and equities existing between the original 
parties. We have already seen that where a negotiable note is se- 
cured by mortgage the transferee acquires a title to the security, 
though it be not named, and even though he had no knowledge of 
it. In such cases it has been attempted to inquire into the considera- 
tion of the debt where the security is sought to be enforced, and in 
some States this is permitted to be done.' 

In this, as in a majority of the States, however, a purchaser of a 
note who is permitted to enforce the debt which it represents, is held 
entitled to the lien by which it is secured, and no defense is permitted 
against the security which does not operate to defeat the debt.° It is 

^ Viele V. Judson, 82 N. Y. 32. mings, 31 111. 188 ; Baily v. Smith, 14 

" Towner v, McClelland, i lo 111. 542 ; Ohio St. 396 ; Corbett v. Woodward 

Bryant v. Vix, 83 111. 11 ; White v. (Oregon), 11 Chicago L. N. 246. 

Southerland, 64 111. 181 ; Olds v. Cum- » Gould v. Marsh, 4 N. Y. Sup. (T. & 



§ 309. J ASSIGNMENT OF MORTGAGES. 215 

not material as to wlietlier the debtor is or is not also tlie owner of 
the mortgaged property, since by creating a lien to secure commercial 
paper he binds his land by all rules giving such obhgations, and a 
wife of the mortgagor is bound by the lien by executing the mortgage, 
though not a party to the notes.' 

Where notes secured by mortgage are indorsed and transferred 
before maturity, it is no defense to a foreclosure brought by the hold- 
ers of such notes to show that payment was thereafter made to the 
mortgagee.'' 

Tf negotiable notes or drafts secured by mortgage are transferred 
after maturity,' or for a past consideration,* or to a person having 
notice of the facts,' they are open to all defenses in like manner as 
they would be if not accompanied by any security. 

A purchaser of a negotiable note before maturity, secured by a 
mortgage of a woman who did not sign the note, will not be pro- 
tected if it can be shown that her signature to the mortgage was ob- 
tained by duress." 

§ 309. Lien controlled by recording acts, though to secure 
negotiable paper. — The rule which protects commercial paper se- 
cured by mortgage is controlled by the recording acts to the extent 
to which they may be apphcable, and where a mortgage which secures 
a negotiable note has been released of record, it loses its negotiable 
character to the extent that any third person who may purchase the 
property in good faith will obtain the full, complete, and absolute 
title thereto, freed from all equities, liens, interests, trusts, or incum- 

C.) 128 ; s. c. I Hun, 566 ; Reese v. igg ; Beals v. Neddo, 10 Cen. L. J. 187 ; 
Scully, Walker Ch. R. 248 ; Carpenter i McCrary, U. S. C, 206 ; Burhans v. 
V. Longan, 16 Wall. (83 U. S.t 271 ; Hutcheson, 25 Kans. 625 ; Lewis v. 
Kenicott v. Supervisors, Id. 452 ; Saw- Kirk, 26 Alb. L. J. 328 ; 28 Kans. 497. 
yer v. Pritchett, 19 Wall. (86 U. S.) 147 ; ' Gabbert v. Schwartz, 69 Ind. 450. 
Taylor v. Page, 6 Allen, 86 ; Croft v. ^ Mead v. Leavitt, 59 N. H. 476 ; Blu- 
Bunster, 9 Wis. 503, 510 ; Kelley v. menthal V. Jassoy, 29 Minn. 177 ; Car- 
Whitney, 45 Wis. no ; Paige v. Chap- penter v. Longan, 16 Wall. 271 ; Button 
man, 58 N. H. 333 ; s. c. 21 Alb. L. J. v. Ives, 5 Mich. 515 ; Croft v. Bunster, 
518, and cases cited ; Bassett v. Daniels, 9 Wis. 503. 

136 Mass. 547 ; Dutton v. Ives, 5 Mich. * Howard v. Gresham, 15 Ga. 347 ; 

515 ; Helmer v. Krolick, 36 Mich. 371 ; Fish v. French, 15 Gray (Mass.) 520. 

Webb V. Haselton, 4 Neb. 308 ; 19 Am. * Glidden v. Hunt, 24 Pick. (Mass.) 

R. 638 ; Mundy v. Whittemore, 15 Neb. 221. 

647 ; Reeves v. Hayes, 95 Ind. 521 ; * Burbank v. Warwick, 52 Iowa, 493. 

Gabbert V. Schwartz, 6g Ind. 450; Bayles "Bank, etc., v. Bryan^ 62 Iowa, 42 ; 

v. Glenn, 72 Ind. 5 ; Logan v. Smith, 62 'Burbank v. Warwick, 52 Id. 493 ; Tabor 

Mo. 455 ; Vandercook v. Baker, 48 Iowa, v. Foy, 56 Id. 539. 



216 MORTGAGES OF REAL PROPERTY. , [§ 310. 

brances existing in favor of any holder of the note or mortgage, 
whether the note is satisfied or not.' So, where there has been a re- 
corded assignment of the mortgage a subsequent transferee of the 
note will not be entitled to the benefit of the lien.' 

§ 310. Assignee of mortgage takes subject to equities of 
debtor. — ^Where a negotiable note is secured by a mortgage, a hona 
fids assignee, before maturity, takes it free from any equities between 
the original parties ;' but a bond, whether secured by mortgage or 
not, and whether it be in the hands of the obligee or of his assignee, 
carries with it no conclusive presumption of validity. It is a mere 
chose in action ; the obligor may impeach its consideration or estab- 
lish any other valid defense against it while it remains in the hands 
of the obligee, and, as a general rule, his rights in this respect cannot 
be changed by a transfer of the rights of the obligee to a third person. 
In the transmission of property of any kind from one person to ail- 
other, the former owner can, in reason, only transfer what he himself 
has to part with, and the other can only take what is thus transferred 
to him. The cases in which, from motives of public policy, to pro- 
mote the currency of certain securities, to prevent fraud, or to aid 
the vigilant against the careless, the party to whom the transfer is 
made is allowed to claim a greater interest than was possessed by the 
other, are exceptional, and no general rule protects the assignees of 
bonds secured by mortgages from the defects in the titles of their 
assignors. The rule as generally stated is, that the purchaser takes 
only the interest which his assignee had to part with ; or, as was ex- 
pressed by Lord Thdelow : " A purchaser of a chose in action must 
always abide by the case of a person from whom he buys." " This 
(he said) I take to be the general rule." * In other words, as the doc- 
trine is more commonly expressed, the assignee of a chose in action 
takes it subject to the same equities to which it was subject in the 
hands of the assignor. 'If these equities are understood to mean 
only the equities residing in the original obligor or debtor, the au- 



' Lewis V. Kirk, 26 Alb. L. J. 328 ; 28 Scully, Walker Ch. R. 248 ; Carpenter v. 

Kans. 497 ; Conroy v. Fuller, 30 Iowa, Longan, 16 Wall. (U. S.) 271 ; Kenicott 

211 ; Swartz's Ex'rs v. List, 13 Ohio St. v. Supervisors, Id. 452 ; Taylor v. Page, 

4ig. 6 Allen, 86 ; Croft v. Bunster, 9 Wis. 

'' Morris v. Bacon, 123 Mass. 58. 510 ; Paige v. Chapman, 58 N. H. 333 ; 

'Gould V. Marsh, 4 N. Y. Sup. (T. & s. c. 21 Alb. L. J. 518, and cases cited. 

C) 128 ; s. c, I Hun, 566 ; Reese v. * Davies v. Austin, I Ves. 247. 



§ 311.J 



ASSiaNMENT OP MORTGAGES. 



217 



thorities will be found to be numerous and uniform in favor of the 
proposition.' 

An assignee's claim will be subordinate to a parol agreement be- 
tween the mortgagor and mortgagee, after the making of the mort- 
gage, by which the amount secured by the mortgage was reduced ' or 
discharged." 

§ 311. Where the question is as to validity of the debt. — It 
would seem to be settled that where the question is as to whether 
the debt exists, all defenses are as available against the assignee as they 
were against the original party to the instrument. If the debt is con- 
ceded to exist, it at once becomes a piece of property, and the rights 
of the owner or assignee of a bond must be judged by the same 
rules which would govern in the case of a horse or of a share of 
stock." But the owner of the debt cannot, by transferring it, make 
any difference in the obligation of the debtor ; and when the validity 
or the amount of the debt is in dispute, whether the debtor or those 



' Murray v. Lylburn, 2 Johns. Ch. 441 ; 
Livingston v. Dean, 2 Johns. Ch. 479 ; 
James v. Morey, 2 Cow. 246 ; Pendleton 
V. Fay, 2 Paige, 202 ; Evertson v. Ev- 
ertson, 5 Paige, 644 ; L'Amoureux v. 
Vandenburgh, 7 Paige, 316 ; Evans v. 
Ellis, 5 Den. 640 ; Ellis v. Messervie, 
II Paige, 467 ; Richards v. Warring, i 
Keyes, 576 ; Bush v. Lathro p ■'•' >J "V- 
535 ; Reeves v. Kimball, 40 N. Y. 299 ; 
Mason v. Lord, 40 N. Y. 476 '; Moore v. 
Metropolitan National Bank, 55 N. Y. 
41 ; Ingraham v. Disborough, 47 N. Y. 
421 ; Clute V. Robison, 2 Johns. 5^5 ; 
Ely V. McNight, 30 How. 97 ; Westfall 
V. Jones, 23 Barb. 9 ; Mickles v. Town- 
send, 18 N. Y. 575 ; Bockes v. Hathorn, 
20 Hun, 503 ; Davis v. Beckstein, 69 
N. Y. 440 ; Tabor v. Fay, 56 Iowa, 539 ; 
Horstman v. Gerker, 49 Penna. St. 282 ; 
De Witt v. Van Sickle, 29 N. J. Eq. 209 ; 
Reddish v. Ritchie, 17 Fla. 867. In Penn- 
sylvania the rules as to equities on the 
assignment of mortgages differ from 
most of the other States. The assignee 
of a mortgage takes the same subject to 
all equities between the mortgagor and 
mortgagee, but not subject to the equi- 
ties between the mortgagor and a prior 



assignee of a mortgage. Reineman v. 
Robb, 98 Penna. St. 474. The assignee 
of a mortgage is not affected by a collat- 
eral agreement made between the mort- 
gagor and mortgagee at the time of the 
execution of the mortgage, by which it 
was stipulated that the mortgagee should 
release the lien from any lots which the 
mortgagor might sell on receiving a rea- 
sonable portion of the purchase money. 
McMasters v. Wilhelm, 85 Penna. St. 
218 ; Pryor v. Wood, 31 Id. 142 ; Davis v. 
Barr, 9 S. & R. 141. And a mortgage 
debt in the hands of an assignee of the 
mortgagee is not affected by payments 
of money made by the mortgagor for the 
benefit of the mortgagee previous to the 
assignment, with the understanding that 
such payments were to be credited on 
the mortgage debt, unless by indorse- 
ment or other mode or memorandum of 
credits, such proportion of the debt was 
in fact reduced by an application of the 
sums so paid. Post v. Carmalt, 2 Watts 
& Serg. 70 ; 37 Am. Dec. 484. 

* Green v. Fry, 93 N. Y. 353. 

' Sumner v. Waugh, 56 111. 531. 

* Moore v. The Metropolitan National 
Bank, 55 N. Y. 41. 



218 MOKTaAGES OF KEAL PEOPEETT. [§ 312. 

claiming under him, as grantees,' or judgment creditors," or mechanics' 
lienors,' or otherwise interested, are on the one side ; or whether the 
original creditor or his assignee be found on the other side, are ques- 
tions of no importance. The debt cannot be either created or en- 
larged by passing it from hand to hand ; and the debtor, or those 
claiming his rights, may assert them at any time, and as against any 
person to whom the claims of the creditor may have been transferred. 
It is a matter of no importance to the debtor as to what the nature of 
the dealings of the creditor with his debt has been, and unless he has 
made himself a party to a transfer by his acts or statements, he can 
defend himself equally well if the transfer be for a valuable consider- 
ation as if it be for none at all. 

§ 312. Distinction between latent equities and equities of the 
obligor, — In an early case ' it was said by Chancellor Kent that the 
rule that the purchaser of a chose in action takes it subject to the 
same equity it was subject to in the hands of the assignor, was not to 
be understood to include an equity residing in some third person 
against the assignor. The assignee can always go to the debtor and 
ascertain what claims he may have against the bond or other chose in 
action which he is about purchasing from the obligee ; but he may 
not be able, with the utmost diligence, to ascertain the latent equity 
of some third person against the obligee. He has not any object to 
which he can direct his inquiries, and for this reason it was thought 
to be equitable that if he became a purchaser for value, without 
notice of any defect in the title of his assignor, and with no means of 
ascertaining whether there was any such defect, he ought to be 
protected. 

Chancellor Kent gave, as an illusti^tion of a latent equity, a case 
of the setting up by a third person of a secret equity against the as- 
signor,° and such an equity would be unquestionably disregarded in 
favor of a bona fide purchaser without notice." In all such cases, and 
wherever notice to an assignee is fatal to his claims, a Tjona fide pur- 
chaser without notice is not prejudiced by notice to his assignor.' 



■ Hartley v. Tatham, 24 How. 505. ' Murray v. Lylbum, 2 Johns. Ch. 441. 

' Rosevelt v. Bank of Niagara, Hopk. ' Crocker v. Crocker, 31 N. Y. 507. 

Ch. 579. ' Jackson v. Henry, 10 Johns. 185 ; 

' Schafer v. Reilly, 50 N. Y. 61. Jackson v. Van Valkenburgh, 8 Cow. 

* Murray v. Lyiburn, 2 Johns. Ch. 260 ; Varick v. Briggs, 6 Paige, 323 ; 

441 ; Livingston v. Dean, 2 Johns. Ch. Fort v. Burch, 5 Den. 187; ,Busb-'»rfew 

479. throp, 22 N. Y. 549. 



§§313-314.] ASSIGNMEKT OF MORXGAGES. 219 

In Bebee v. I'he Bank of New York (1 Johns. 529), Chancellor 
Kent attempted to sustain the distinction between latent equities and 
equities of the obligor, and he was overruled. Judges Spencee and 
Tompkins both disagreeing with him. He afterward reaffirmed the 
doctrine in Murray v. Lylhv/rn (2 Johns. Ch. 441), and in Living- 
ston V. Dean (2 Johns. Ch. 479). It is not clearly defined what a 
latent equity is,' and the phrase could hardly be taken as a safe guide, 
even if the distinction between patent equities and latent equities 
could be maintained. In the case of Bush v. Lathrop (22 IST. Y. 
535), it was, indeed, determined, after a very elaborate examination 
of the authorities by Judge Denio, that the distinction had no found- 
ation in our jurisprudence. 

§ 313. Equities of third persons claiming rights in the 
property. — Upon general principles, a mortgagor can only charge 
the estate to the extent of his interest in it, and the mortgagee 
can transfer only such interest as he receives. The presumption, ' 
therefore, is that, as between the equities of persons claiming interests 
in or liens upon lands, the one which is prior in time is also prior in 
right, and that an assignee of a mortgage stands exactly in the posi- 
tion of his assignor, whether the rights of that position were known 
to him at the time of receiving the assignment or not. Those cases 
in which the assignee of a mortgage acquires a priority over other 
rights in the estate which was not possessed by his assignor, are ex- 
ceptions to the general rule, and such priority is derived in most, if 
not in all cases, from the provisions of the recording acts, or from the 
equitable doctrine of estoppel. 

§ 314. A review of some of the cases in which such questions 
have arisen may be useful. 

In Van Benssdaer v. Stafford (Hopk. 569 ; affi'd on appeal in 9 
Cow. 316), one Tan Dusen sold to "W. lands which he had bought of 
Van Eensselaer, and for which he was partly indebted to V. R., and 
took from "W". two mortgages of equal date, intending that one should 
have priority and be assigned to Y. K. for the original purchase 
money due to him. The mortgages were registered concurrently, but 
one of them was soon after assigned to Y. R. Afterward Y. D. as- 
signed the other to Stafford in good faith, for value, without notice of 
Y. E.'s intended priority. It was held that Stafford stood in the 
place of Y. D., and held his mortgage subject to all the equity which 

' Mickles v. Townsend, i8 N. Y. 580. 



220 MOETGAGES OF EEAL PEOPEKTT. [§ 314. 

Y. R. had against Y. D., and Y. E.'s mortgage was declared to have a 
priority. 

In Greene v. Deal (4 Hun, Y03), two bonds and mortgages of the 
same date were executed upon the same property for the purchase 
money. It was intended by the parties that they should be equal -as 
to priority. They were recorded on the same day, but one was re- 
corded at a later time than the other. After the recording of both of 
the mortgages, the one which had first been recorded was assigned to 
a purchaser who paid value, and who had no notice of the agreement 
that the mortgages should be equal as to priority. The Supreme 
Court, at General Term (4 Hun, 703), held that the assignee might 
avail himself of the earlier recording of his mortgage, and that it was 
a prior lien to the other ; but the Court of Appeals reversed this de- 
cision, and decided that the assignee of the mortgage was bound by 
the parol agreement which had been made by his assignor with the 
owner of the other incumbrance.' Aside from the recording acts, the 
assignee took his mortgage subject to the equities between his assignor 
and the other mortgagee ; and there was nothing to estop the other 
mortgagee from asserting his rights, as he did nothing to induce the 
assignee to purchase, and did not, by any act or omission, mislead 
him. The recording act did not affect the rights of the parties, as 
that only applies to svhsequent incumbrances which are first recorded, 
and neither mortgage was a subsequent conveyance to the other, both 
being executed at the same time. The only effect of the recording of 
an assignment of a mortgage is to protect the assignee against a sub- 
sequent sale of the mortgage itself, the recording act only applying 
to successive purchasers from the same sellers." The assignee of the 
mortgage first recorded was held not to have gained any rights by his 
assignment as against the owner of the other mortgage, except such 
as had been possessed by his assignor.' 

In Ddancey v. Stea/rns (66 N. T. 15Y), B. took a mortgage in pay- 
ment of an antecedent debt, and without relinquishing any security 
or giving any new consideration. B. had notice at the time of an un- 
recorded mortgage on the same premises. Subsequently B. assigned 
the mortgage for value to R., who had no "notice of the unrecorded 
mortgage. It was held by the Court of Appeals that E. stood in no 
better position than B. as to such unrecorded mortgage, and that al- 



' Greene v. Warnick, 64 N. Y. 220. " Purdy v. Huntington, 42 N. Y. 334. 

' Greene v. Warnick, 64 N. Y. 220. 



§ 314.] ASSIGNMEKT OF MORTGAGES. 221 

thougli, on the question of notice, the lona fide assignee of a mort- 
gage for value may stand in a better position than the mortgagee, he 
cannot on the question of the consideration of the mortgage, either as 
between himself and the mortgagor or third persons. 

In Crane v. Turner (67 N. T. 437), Pierce had executed a mort- 
gage upon premises of which he had possession under a contract of 
sale, and, after the receipt of a deed, he conveyed the premises and 
received from the grantee, who had notice of the prior mortgage, a 
mortgage for part of the purchase money. Pierce then assigned his 
mortgage to the defendant Turner, assuring him that it was the first 
lien. In an action to foreclose the mortgage. Turner claimed that 
his mortgage was entitled to priority. Both mortgages having been 
duly recorded, it was held that, as Pierce would be estopped from 
claiming a priority if he had retained the mortgage, his assignee had 
no superior right, and was also estopped, and that the recording act 
did not aid the defendant. 

In Ba/rik for Sa/oings v. Franh (56 How. 403 ; s. o. 45 N. T. 
Super. [13 J. & S.] 404), a mortgagee had executed an agreement post- 
poning the lien of his security to a junior mortgage. He subse- 
quently sold the mortgage to a person whose attorney, in the course 
of investigating the title, learned of this agreement, and it was there- 
fore held binding upon him. 

In Schafer v. Reilly (50 IS". Y. 61), a mortgage was made without 
consideration, to be sold by the mortgagee for the benefit of the 
mortgagor, and it was duly recorded. Subsequent to the record of 
the mortgage, a mechanic's lien upon the property was perfected. 
After the perfecting of the mechanic's lien a purchaser of the mort- 
gage received an assignment of it, and paid a valuable consideration 
therefor, relying upon a sworn statement of the mortgagor (untrue in 
fact) that the mortgage was a valid security for the whole amount 
secured by it, and that the money was advanced by the mortgagee 
for it. It was held that the mortgage became vahd only because of 
the estoppel of the mortgagor, and that its lien commenced at that 
time ; that the holder of the mechanic's lien was not bound or prej- 
udiced by the acts of the mortgagor subsequent to the time when 
his rights vested, and that his equities were superior to those of the 
assignee of the mortgage.' 



' See also Trustees of Union College v. Wheeler, 6i N. Y. 88 ; Mullison's Estate, 

68 Pa. St. 212. 



222 MORTGAGES OF EEAL PKOPEKTY. [§§315-317. 

It may properly be said that the principles of these cases do not 
afford encouragement to purchasers of mortgage secm-ities. 

§ 315. Curious questions will be presented in connection with 
negotiable promissory notes secured by mortgages, as between the 
indorsees or transferees of such notes, (whose rights were perfected 
subsequently to the perfecting of a lien upon or a conveyance of the 
mortgaged premises,) and the lienor or grantee. As against the maker 
of the note the indorsee will acquire a perfect title free of all de- 
fenses ;' but it does not at all foUow that if a valid Ken is obtained 
upon the land before the note comes into the hands of a iona fide 
purchaser, the holder of the lien may not assert any of the defenses 
which existed against the note at the time his right accrued, in order 
to protect his title. 

§ 316. Equities of third persons claiming rights in the mort- 
gage. — If the validity of the mortgage be conceded, and if there be 
no question as to its priority of lien, there may still be question as to 
the title of the mortgagee to it, and of his right to assign it. A debt 
secured by mortgage is an article of personal property, and an assign- 
ment of it will, for most purposes, be judged by the same rules which 
control transfers of other choses in action. If, the mortgagee shall 
have parted with the title to one person, he cannot thereafter confer 
a title on another ; " but there are cases where the true owner of a 
mortgage may, by allowing another person to hold the apparent title,, 
confer upon him the power of conveying it. 

§ 317. The following cases will illustrate the rules which gov- 
ern in this class of questions : 

In CoveU v. The Tradesmen's Sank (1 Paige, 131), CoveU had a 
sealed note for $2,425 against Hunt, payable to himself ia a year. 
He borrowed $100 of Mullins, and pledged the note to secure it, in- 
dorsing his name in blank. M. being indebted to the Tradesmen's 
Bank in $2,600, and pretending to own the note, transferred it to the 
bank in payment of $1,000 of that debt, and received the balance of 
the note in money. He indorsed the note in blank, and dehvered it 
to the bank. All this was within two months after the sealed note 
was given. Covell having paid M. iu full, claimed the note of the 



' Gould V. Marsh, 4 N. Y. Sup. (T. & Longan, 16 Wall, 271 ; Longan v. Car- 
C.) 128 ; s. c. I Hun, 566 ; Carpenter v. penter, i Col. J. 205. 

« KeUogg V. Smith, 26 N. Y. 18. 



§ 318.] ASSIGNMENT OF MORTGAGES. 223 

bank, and it was held, tliat having both the prior equity and the legal 
title, he was entitled to the note. 

In Poillon v. Ma/rUn (1 Sandf. Oh. 569), Poillon, who was the 
owner of a mortgage, sold and transferred it to the managing clerk 
of WiUiams, who was his solicitor and confidential adviser, for worth- 
less notes of a county bank, being persuaded to make the sale in part 
by the conduct of "W. A few days after, the first assignment was de- 
stroyed, and a new one was made by P. to B., for the benefit of W. 
After this, J. bought the mortgage from W. in good faith, for value 
paid, without notice, and received an assignment from B. It was 
held, that the transfers to W.'s clerk and to his friend for his benefit 
were void, because of the confidential relation between him and P. 
It was further held, that J. was not protected as against P.'s prior 
equities, and that he must lose the mortgage which he had innocently 
purchased. 

In Sweet v. Van Wyck (3 Barb. Ch. 647), it is said that where a 
bond and mortgage are assigned as security for debt, a subsequent as- 
signee takes the same, subject to the right of the original assignor to 
redeem the securities, upon paying the amount of the loan for which 
such bond and mortgage was pledged, with interest. It does not ap- 
pear, in this case, whether the assignee was or was not a iona fide 
purchaser without notice. 

In Bush V. Lathrop (22 N. T. 535), a mortgage for $1,400 and in- 
terest, was assigned as collateral security for $268.20, by an instru- 
ment absolute upon its face, with a consideration expressed of $268.20. 
The assignee afterward transferred it for its full value, and the ques- 
tion was presented as to whether the final assignee could hold the 
mortgage for its full amount. The authorities were quite fully re- 
viewed by Denio, J., and it was held, by a divided court, that the 
holder of the mortgage was bound by the condition for redemption, 
and that the equity of the assignor was not destroyed by the assign- 
ment.' 

§ 318. A similar question was, however, presented in Moore v. 
The MetropoUtcm National Bamk (55 IST. Y. 41 ; 14 Am. E. 173), and 
the principle in Bush v. J^throp was there repudiated and over- 
ruled. The distinction between patent and latent equities was not 
reKed upon, but it was held that where a person has conferred upon 
another an apparently valid title to a chattel, he ought, equitably, to 

' Kamena v. Huelbig, 23 N. J. Eq. 78. 



224 MOETGAGES OF REAL PROPERTY. [§ 319. 

be precluded from asserting his title against a Ixyna fide purcliaBer 
from such apparent owner upon the faith of the title which he had 
apparently given. Another reason was that were the rule otherwise, 
it would afford opportunities for the perpetration of frauds upon the 
purchasers from such apparent owners. Where one, known to be the 
owner of chattels, dehvers them to another, together with an absolute 
written transfer of all his title thereto, he thereby enables him to hold 
himself out as owner, and as such, obtain credit upon and make sales 
of the property ; and if, after he had so done, the owner was permit- 
ted to come in and assert his title against those dealing upon the faith 
of these appearances, the dishonest might combine and practice the 
grossest frauds. Another reason is that such a case is a proper one 
for the application of the legal maxim that, where one of two inno- 
cent parties must sustain a loss from the fraud of a third, such loss 
shall tall upon the one, if either, whose act has enabled such fraud to 
be committed. 

§ 319. These principles had been applied in MoNeU v. The 
Tenth National Bcmk (46 N. T. 325 ; 7 Am. E. 341), to a case 
where the transfer was of shares of stock in an incorporated company, 
and in Moore v. The Metropolitan National Bcmk {supra), they 
were held to apply with all of their force to choses in action. There 
is no reason why the owner of a horse or of bank shares, who has 
given to another a transfer of all his right thereto for some other pur- 
pose than of passing the title, should be precluded as against a hona 
fide purchaser from such person, from asserting his title, while, under 
the same state of facts, he may reclaim from such purchaser a bond 
and mortgage or .a certificate of indebtedness. As to the former, he 
is estopped, and as to the latter, the innocent purchaser will also be 
protected.' 

A similar principle was declared in DiUaye v. The Commercial 
Bank of Whitehall (51 N. Y. 345), in which it was determined that 
where a trustee is clothed with full power to manage and control the 
trust estate, an assignment by him of a mortgage impressed with the 
trust to a hona fide purchaser or pledgee, cannot be impeached by the 
cestui que t/rust. 

' See Cutts v. Guild (57 N. Y. 229), in 61 N. Y..88, affi'g 59 Barb. 585 ; Clarke 

which the doctrine of Bush v. Lathrop v. Roberts, 25 Hun, 86; Westbrook v. 

was approved by the Commission of Ap- Gleason, 79 N. Y. 23, 30 ; Simpson v. 

peals. See also to the same effect, Del Hoyo, 94 N. Y. i8g. 
Trustees of Union College v. Wheeler, 



§§320-322.] ASSIGNMENT OF MOETGAGES. 225 

§ 320. In First National Bank of Corry v. Stiles (22 Hun, 
339), a bond and mortgage for $10,000 had been made by McKay to 
J!f ash on an arrangement by which they were to be sold by J^ash and 
the proceeds applied to the payment of certain drafts drawn by 
McKay on Nash and accepted by him for the accommodation of 
McKay. Instead of selling them they were assigned by Nash to the 
Union Banking Company in part as security for past indebtednesses, 
and the bank relying upon the assignment at the same time dis- 
counted other paper for said JSTash to an amount exceeding $10,000, 
the proceeds of which were applied in taking up paper previously 
discounted for said Nash by said assignees upon which Nash and 
other parties were liable. The plaintiff, as the owner of one of the 
drafts which was to have been paid by the mortgage, brought the 
action against the defendant, as trustee of the Union Banking Com- 
pany, to restrain the enforcement of the mortgage. It was held that 
the assignment was sufficient, that the Union Banking Company ac- 
quired title to the bond and mortgage thereby, and that the action 
could not be sustained.. 

§ 321. When real or personal property is obtained from one 
by fraud upon the purchase thereof, and the vendor thus intention- 
ally parts with the title, the vendee can always by a sale to a 'bona 
fide purchaser for value, give a good title as against the vendor. So, 
where a conveyance of real estate was obtained by fraud and the 
grantee mortgaged the property and the mortgage was thereafter 
purchased by a person having no notice of the fraud and for value, 
it was held that it* could be enforced.' 

A bona fide assignee of a mortgage is entitled to hold it as against 
the original assignor, who, by placing it in his agent's hands, assigned 
in blank or for a particular purpose, gave such agent an opportunity 
to commit a fraud upon him.' But a person taking such assignment 
as security for an antecedent debt is not a bona fide assignee for this 
purpose.' 

A mortgage executed to defraud creditors will be good in the hands 
of a bona fide assignee for value.' 

§ 323. Limitations of last-mentioned rule. — The cases of Mc- 

' Simpson v. Del Hoyo, 94 N. Y. i8g. * Blunt v. Norris, 123 Mass. 55. 

' Putnam v. Clark, 29 N. J. Eq. 412 ; ^ De Witt v. Van Sickle, 29 N. J. Eq. 

Grocers' Bank v. Neet, 29 N. J. Eq. """ 
449 ; Jacobson v. Dodd, 32 N. J. Eq. 403. 

15 



209. 



226 MORTGAGES OF REAL PEOPERTT. [§ 323. 

Weil V. The Tenth National Bank {supra) and Moore v. The Met/ro- 
politam National Bank {supra) do not either of them interfere with 
the well-settled rule that the purchaser of a chose in action takes it 
subject to the equities between the original parties. These cases 
only have application where the security is valid at its inception and 
the apparent ownership has been conferred by assignment from the 
owner. In such case such owner is estopped from asserting his title 
against a ionafide purchaser for value, who purchased upon the faith 
of such apparent absolute ownership. The equities of mortgagors are 
in no way affected by those decisions.' 

The title of a bond and mortgage does not pass under an assign- 
ment which is neither delivered to nor accepted by the assignee, 
though it be recorded. So, where an assignment of a mortgage was 
made as a collateral security and was recorded, but was never deliv- 
ered, the original bond and mortgage remaining in the hands of the 
mortgagor, who continued to collect and receipt for the interest in 
his own name ; and the mortgagee assigned them again to a pur- 
chaser for value, the second assignee was held to have the better 
title.'' 

In Beid v. Sprague (9 Hun, 30), a mortgage was held in trust for 
the use of a lunatic for her life, with remainder to the mortgagee. 
The mortgage was a part of the purchase money on a sale of a por- 
tion of the trust estate, and the nature of the trust did not appear 
upon its face. The mortgage was assigned as security for a debt, and 
it was held that the assignee occupied precisely the position of the 
assignor, and that a court of equity might enforce the trust against 
him, 

§ 323. Rules for determining what equities are destroyed by 
assignment. — The following propositions appear to be sustained by 
the decisions already cited : 

1. The assignment of a bond and mortgage operates as a grant or 
transfer of the interest of the assignor in the debt or obligation, and 
in the land as security therefor. This is all that, in any event, or 
under any circumstances, can be received by the assignee from the 
assignor. 

2. The assignee may acquire the rights of third persons, either 
under the recording acts, because the rights of such third persons did 
not appear upon the public records when a positive rule of law re- 

' Davis V. Bechstein, 69 N. Y. 440. ' Brown v. Johnston, 7 Abb, N. C. 188. 



§ 324.] ASSIGNMENT OF MOETGAaES. ' 227 

quires that they should so appear, or because such third persons have 
by their actions or by their omitting to act, rendered it inequitable 
that they should assert their rights as against him. In either case, 
the rights of the assignee may be said to depend upon an estoppel 
against the persons whose rights are cut off for his benefit. Such an 
estoppel operates as an equitable grant, and the rights which are ac- 
quired by the assignee, and which were not possessed by the assignor, 
depend upon such estoppel or equitable grant, and not upon the assign- 
ment. 

3. The liability of the mortgagor upon his bond for the debt is 
inherited by his personal representatives, no matter in whose hands 
the obligation may be, and he may render a void bond or obligation 
binding upon himself and them in the hands of a purchaser of it, by 
acts which render it dishonest to deny that it is so. In the same way 
he may, so long as the land continues to be his, bind the land by the 
mortgage by way of estoppel, and thereby cut off a defense which 
might otlaerwise be made; and such estoppel will bind him and 
those who acquire interests in the land under him subsequent thereto. 
But it will not bind interests which vested previous to such estoppel,' 
and the owners of interests which had previously vested can only 
have their property taken away from them by some act or neglect of 
their own, as, for instance, by omitting to record the instruments upon 
which their rights depend, when the law requires that they should be 
recorded. 

4. When questions arise as to the title to the mortgage itself, all 
the claimants agreeing with regard to its validity, such questions are 
to be decided upon the same principles which would govern if the 
subject of the controversy were a horse or any other chattel, except 
that the recording acts are to be considered in the cases to which they 
may apply. 

§ 324. When mortgagor will be estopped from defending 
against assignee. — Since a mortgage carries with it no conclusive 
presumption of validity, it is never safe to take an assignment of a 
mortgage without first making inquiry of the parties who might pos- 
sibly have some claim or defense against it, as to their rights^ If this 
inquiry be made in good faith, the answers in relation to the instru- 
ment are conclusive as against the parties making them, and all per- 
sons afterward claiming under such parties, in favor oi the person 

' Schafer v. Reilly, 50 N. Y. 61. 



228 MORTGAGES OF EEAL PEOPEETY. [§§325-326. 

maMng tlie inquiry and acting upon tlie information received, by way 
of estoppel.' 

If the mortgagor states to a person about talcing an assignment 
that the mortgage is valid and free from defenses, and if such person 
believes such statement to be true, and if he acts upon it in good 
faith, it will protect him, even though the mortgage be void for 
usury.^ 

§ 325. Estoppel a protection to extent only of consideration. — 

The rule which enforces an estoppel injpais is an equitable one, and 
should not be subverted to the assisting of oppression, and there is 
neither reason nor justice in the enforcing of a rule of ethics to ena- 
ble the recovery of usurious profits. If a person attempted, by the 
construction of an estoppel, to enforce a void mortgage of $1,000 pur- 
chased for $100, it should be permitted upon some other ground than 
the principles of morality and good conscience. These principles 
would denounce it as oppression and extortion, and courts should be 
cautious not to establish an iron rule, the practical operation of which 
subverts the very principle upon which it is based. For these reasons 
an estoppel will not operate to enable the purchaser of a mortgage to 
make a speculation out of the falsehood of the mortgagor, and it will 
only protect him to the extent of the amount of money actually ad- 
vanced by him upon the faith of the mortgagor's statement as to the 
validity of the security, with legal interest. 

§ 326. Form of statement to create estoppel. — To create an 
estoppel, it is necessary that the statement be made to the person 



1 Union Dime Savings Inst. v. Wei- Real Estate Trust Co. v. Seagreave, 49 

mot, 94 N. Y. 221 ; Payne v. Burnham, How. 489 ; L'Amoreaux v. Visscher, 2 

2 Hun, 143; s. c. 4N.Y. Sup. (T. &C.) N. Y. 278; Nichols v. Nussbaum, 10 

678 ; 62 N. Y. 69 ; Eitel v. Bracken, 6 Hun, 214 ; Smyth v. Munroe, ig Hun, 

J. &S. 7; Watson V. McLaren, 19 Wend. 550 ; Real Estate Trust Co. v. Rader, 53 

557 ; Lesley v. Johnson, 41 Barb. 359 ; How. 231 ; Weil v. Fischer, 42 N. Y. 

Ferguson v. Hamilton, 35 Id. 427; Clark Supr. (10 J. & S.) 32 ; Smyth v. Lom- 

V. Sisson, 5 Duer, 408 ; Fleischmann v. bardo, 15 Hun, 415 ; Barnett v. Zacha- 

Stern, 24 Hun, 265, aiE'd 90 N. Y. no ; rias, 24 Hun, 304 ; Piatt v. Newcomb, 27 

Carpenter v. O'Dougherty, 2 T. & C. Hun, 186; Payne v. Burnham, 62 N. Y. 

.427; Kelly V. Scott, 49 N. Y. 595; Hirsch 69 ; Ahern v. Goodspeed, 72 N. Y. 108 ; 

V. Trainer, 3 Abb. N. C. 274 ; Grissler Riggs v. Purssell, 89 N. Y. 608 ; Weyh 

V. Powers, 81 N. Y. 57 ; 53 How. 194 ; v. Boylan, 85 N. Y. 394. 

J7 Am, R. 475 ; Real Estate Trust Co. v. * Payne v. Burnham, 62 N. Y. 6g, 

Rader, 53 How. 231 ; Sweeney v. Wil- rev'g s. c. 4 N. Y. Sup. (T. & C.) 678 ; 2 

Jiams, 36 N. J, Eq. 627. Hun, 143 ; Norris v. Wood, 14 Hun, 

'^ Mason v. Anthony, 3 Keyes, 609 ; 196. 



§§ 327-328.] ASSIGNMENT or MORTGAGES. 229 

about to act upon it, and with intent that he shall do so. Every mort- 
gage or other written obligation of indebtedness contains within itself 
a statement of facts which imports vahdity, but the statement does 
not prevent the person promising from availing himself of any vahd 
defense ; for the declaration falls with the contract.' But where a 
certificate is made by a mortgagor in such form as to be an open let- 
ter to every person contemplating the purchase of the security, ex- 
pressly declaring its validity, he will be bound to the truth of his 
statements in favor of any person who may have relied upon them, 
even though such certificate bears the same date as the mortgage.'' 

§ 327. The statement must have been acted upon. — An estop- 
pel in pcds is defined to be " an admission or statement, made by one 
individual, intended to influence the conduct of another with whom 
he is dealing, and actually leading him into a line of conduct which 
must be prejudicial to his interests, unless the party making the ad- 
mission or statement be cut off from the power of retraction." " In 
such a case it would be against good conscience and a frauds to deny 
the truth of the statement thus made and acted upon ; and this is the 
point upon which the question of estoppel turns." 

An indispensable requisite of an estoppel m pais is that the con- 
duct or representation was intended to, and did in fact, influence the 
other party to his injury. It is not sufficient that a person is made 
to believe that an estoppel wiU be made in the future.' 

§ 328. The statement must be believed. — By an estoppel a 
man's mouth is closed so as to prevent him from showing the truth, 
and the law wiU only enforce it when the rule of policy is also a 
plain rule of morals. The doctrine of estoppel vnjpais rests upon 
equity, good conscience, and honest dealing ; it is not sufficient that 
the statement was believed to be a protection as a matter of law, but 
the facts stated must be believed and relied on, and a change of posi- 
tion must be induced by such reliance on their truth." No mere form 
will work an estoppel ; and if the person inquiring,' or his agent in 



1 Mechanics' Bank v. N. Y. & N. H. * Baker v. The Union Mutual Ins. 

R.R.Co.,i3N.Y.638;Clarkv. Sisson,22 Co., 43 N. Y. 283. 

N. Y. 312 ; Weyh v. Boylan, 85 N. Y. 394. ^ Payne v. Burnham, 62 N. Y. 69. 

^ Weyh V. Boylan, 83 N. Y. 394, 401 ; * Welland Canal v. Hathaway, 8 Wend. 

Mechanics' Bank of Brooklyn v. Town- 483 ; Shapley v. Abbott, 42 N. Y. 

send, 29 Barb. 569. 443. 

3 Dezell V. Odell, 3 Hill, 219 ; Rey- ' Shapley v. Abbott, 42 N. Y. 443 ; 

nolds V. Lounsbury, 6 Hill, 534. Kneettle v. Newcomb, 31 Barb. i6g. 



230 MORTGAGES OF EEAL PROPERTY. [§§ 329-331. 

the special transaction/ have knowledge of the facts, a statement made 
for the purpose of affording him a legal protection will not answer. 
If he does not believe the statement to be true, it will not protect 
him." A statement that a mortgage is valid, is, therefore, no protec- 
tion to a party to the transaction out of which the defense arose,' even 
though he received the statement and acted upon it, believing that it 
would afford him protection.* 

§ 329. The statement must be fairly obtained, without any 
trick or fraud, since one who claims the protection of an equitable 
rule, must himself act equitably.' It is therefore desirable that a per- 
son who intends to rely upon such a statement should be satisfied that 
its meaning is well understood by the person who is making it, and 
that he should be able to prove that his conduct was such as to ex- 
clude all presumption of unfairness or of artifice on his part. If he 
himself does nothing which ought to mislead, the person with whom 
he deals will not be allowed to mislead or to defraud him, and will be 
held to the truth of the statement. The statement will in such a case 
be held to operate as an estoppel, even though it is signed by a per- 
son who does not understand the language in which it is written, 
or the purpose for which it is to be used," or by a person of feeble 
mind.' 

§ 330. An estoppel may also be created by conduct without 
words, and where a mortgage was paid, but with the knowledge and 
assent of the mortgagor was assigned to a purchaser for value with- 
out notice, it was held valid as against the mortgagor.' So, where an 
assignee of a right of action takes an assignment with the debtor's 
assent, though he merely stands by in silence, the debtor is estopped 
to impeach it.° 

§ 331. Estoppel by statements of an agent. — An estoppel is 

' Hutchins v. Hebbard, 34 N. Y. 24 ; * Eitel v. Bracken, 6 J. & S. 7 ; Shap- 

Plumb V. Cattaraugus Ins. Co., 18 N. Y. ley v. Abbott, 42 N. Y. 443. 

394 ; Lawrence v. Brown, 5 N. Y. (i * Wilcox v. Howell, 44 N. Y. 398 ; 

Seld.) 401. s. c. 44 Barb. 396 ; Mechanics' Bank v. 

* Keeler v. Davis, 5 Duer, 507 ; Law- Townsend, 17 How. 569 ; Nichols v. 

rence v. Brown, 5 N. Y. 394; Chautau- Nussbaum, lo Hun, 214. 

qua Bank v. White, 6 Id. 236 ; Jewett v. * Dinkelspiel v. Franklin, 7 Hun, 339 ; 

Miller, 10 Id. 402 ; Eitel v. Bracken, 6 Phillip v. Gallant, 62 N. Y. 256. 

J. & S. 7. ' Hirsch v. Trainer, 3 Abb. N. C. 274. 

' Van Sickle v. Palmer, 2 N. Y. Sup. ' Purser v. Anderson, 4 Edw. 17. 

(T. & C.) 612 ; Breunich v. Weselmann, ' Watson's Ex'rs v. McLaren, 19 Wend. 

49 N. Y. Super. (17 J. & S.) 31. 562 ; Weyh v. Boylan, 85 N. Y. 394, 397. 



§ 332.] AS8IGNMEKT OP MORTGAGES. 231 

not created by the false statement of an agent as to a matter not 
within the scope of his agency.' But where a bond and mortgage 
are made and delivered to the mortgagee for the purpose of sale, he 
is thereby constituted the agent of the mortgagee, with authority to 
do any act or make any statement with regard to them found neces- 
sary to make a sale and incidental thereto. If such mortgagee de- 
clares falsely in the course of a negotiation for such sale that the bond 
and mortgage were made to him for full value and are valid securities 
in his hands, and a purchaser relies on such declaration, the mortgagor 
is bound by them and cannot assert the facts in defense." So, where 
application was made to a banking firm by one of its customers for a 
" good " bond and mortgage, and they furnished a bond and mortgage 
executed by one of the members of the firm to another, it was held 
that all the members of the firm, including the parties to the securi- 
ties, were estopped from alleging them to be usurious and void." 

§ 332. Who are bound by such estoppel. — An estoppel binds 
the person making the statement, and all claiming under him subse- 
quent to the time when it has become binding by the change of posi- 
tion which it induces, but it cannot bind strangers. It operates, as it 
were, as an equitable assignment of the rights of the person estopped, 
but it concludes no one else." 

The grantee of a person bound by an estoppel is also bound by it, 
upon the principle that a man can only convey such rights as he has, 
but statements and admissions made by the grantor of a chose in 
action, and which have not become binding as estoppels, do not have 
any such effect. A declaration made by a mortgagee prior to an 
assignment, to the effect that the mortgage is void for usury, is not 
even admissible against his assignee for value," neither are any other 
declarations or admissions which have not influenced the conduct of 
the persons to whom they were made in dealing with the security.' 
Even a receipt in writing, signed by the mortgagee, is not in itself 
conclusive evidence of payment as against his assignee for value, for 
a receipt is but a written admission, and is always capable of explana- 



' N. Y. Life Ins. and Trust Co. v. ^ Hoeffler v. Westcott, 15 Hun, 243. 

Beebe, 7 N. Y. (3 Seld.) 364. , * Schafer v. Reilly, 50 N. Y. 61. 

= Ahern v. Goodspeed, 72 N. Y. 108, ' Booth v. Swezey, 8 N. Y. (4 Seld.) 

114; Piatt V. Newcomb, 27 Hun, 186; 276. 

Hoeffler v. Westcott, 15 Hun, 243. See * Paige v. Cagwin, 7 Hill, 361 ; Smith 

also Commonwealth v. Councils of Pitts- v. Webb, i Barb. 230. 

burgh, 34 Pa. St. 496, 520. , 



232 MOETGAGBS OF EEAL PEOPERTT. [§ 333. 

tion.' A receipt is, however, evidence, in connection with proof of 
payment as part of the res gestce.'' 

A statement of the mortgagit^o the effect that there was no legal 
or equitable defense to the mortgage, upon the faith of which a pur- 
chaser of the security paid value, estops the mortgagor, and all there- 
after claiming under him, from setting up a parol agreement between 
the mortgagor and mortgagee at the time of the execution of the 
mortgage, by which the mortgagee was to release certain portions of 
the premises on specified conditions.' 

A married woman may be estopped by a statement as to the valid- 
ity of a mortgage which is rehed upon by a purchaser, in the same 
manner as if she were sole." 

§ 333. What covenants are implied in an assignment of a 
mortgage. — The authorities state in general terms, that the vendor 
of a chose in action, in the absence of express stipulations, impliedly 
warrants its legal soundness and validity. If there are exceptions to 
this rule, they do not exist where the invalidity of the debt or secu- 
rity sold arises out of the vendor's own dealing with or relation to it.' 
An absolute transfer carries with it by imphcation, also a covenant 
that the vendor has a perfect title," except where the vendor has not 
the possession of the chose in action, in which case such a covenant 
is not implied.' In addition to the warranty of title on the sale of a 
mortgage, there is imphed a warranty that it is not a forgery ;° that 
it is unpaid ; that there is no legal defense to its collection," and that 
it can be enforced when it shall become due according to its 
terms.'" 

In an action upon such implied warranty it is not necessary before 
bringing the suit to offer to reassign and return the bond and mort- 
gage," and this although there might be value in their ownership in 
consequence of the covenant of a subsequent grantee of the mortgagor 



' Foster v. Beals, 2i N. Y. 247. ^ Burt v. Dewey, 40 N. Y. 283 ; Car- 

' Bank of Monroe v. Culver, 2 Hill, man v. Trude, 25 How. 440. 

531 ; Van Keuren v. Corkins, 66 N. Y. ' Scranton v. Clark, 39 Barb. 273 ; s. 

77, affi'g 4 Hun, 129. c. afE'd 6 Trans. App. 132. 

' Smyth V. Knickerbocker Life Ins. ' Corwin v. Wesley, 2 J. & S. 109. 

Co., 21 Hun, 241, affi'd 84 N. Y. 589. » Fake v. Smith, 7 Abb. N. S. 106 ; 

'' Smyth V. Munroe, 19 Hun, 550. HoefHer v. Westcott, 15 Hun, 243. 

* Delaware Bank. v. Jarvis, 20 N.\Y. '" Furniss v. Ferguson, 34 N. Y. 485, 

226 ; Littauer v. Goldman, 9 Hun, 231 ; affi'g s. c. 3 Robt. 269. 

Farmer's Nat. Bank of Salem v. Fletcher, " Parks v. Morris Axe & Tool Co., 54 

44 Iowa, 252. N. Y. 586. 



§ 334. J ASSIGNMENT OF MORTGAGES. 233 

to pay them, to which defendant would be entitled on paying the 
judgment.' 

The implied warranty accompanying the sale of a chattel or of a 
chose in action is similar in efEect to the covenant for quiet enjoyment 
in respect to lands.^ In actions upon such covenants it is necessary 
to show that the possession of the grantee has been disturbed,' though 
not necessarily by process of law;' and in order to recover upon the 
implied covenants in an assignment of a chose in action, it must be 
shown that the assignee has actually suffered a loss that would not 
have come to him if the covenants had not been broken. He may 
voluntarily surrender his rights to the true owner, and take upon 
himself the burden, aS against his assignor, of showing the title of the 
claimant ;' but, so long as the assignee is in the enjoyment of the 
thing sold, he cannot maintain an action against his assignor. Nor 
can he, by an amicable arrangement, settle with the claimant and ex- 
tinguish the adverse title. He must submit and surrender his claims, 
or there must be a judicial determination in favor of the adverse 
claimant," and even a judicial determination is not conclusive until a 
payment or assignment directed to be made by it has actually been 
made.' 

§ 334. Notice of the assignment of a mortgage should be 
given to the mortgagor. — The assignee of a bond and mortgage, 
as well as assignees of other choses in action, must give notice of the 
assignment if he wishes to protect himself against a iona fide pay- 
ment to the assignor, or his duly constituted agent, by the debtor.' 
By the express provision of the statute the recording of the assign- 
ment is not of itself to be deemed notice of such assignment to the 
mortgagor, or his heirs or personal representatives, so as to invalidate 
any payment made by them, or either of them, to the mortgagee." If 
the assignee neglects to give actual notice himself, he must, in order 



' Ross V. Terry, 63 N. Y. 613. ' Burt v. Dewey. 40 N. Y. 283. 

^ Delaware Bank v. Jarvis, 20 N. Y. ' James v. Johnson, 6 Johns. Ch. 427 ; 

226 ; Coolidge v. Brigham, 5 Mete. 68 ; s. c. 2 Cow. 246 ; N. Y. Life Ins. & Trust 

Bordewell v. Colie, i Lans. 141. Co. v. Smith, 2 Barb. Ch. 82 ; Trustees 

* Case V. Hall, 24 Wend. 102. of Union College v. Wheeler, 61 N. Y. 

* Greenvaultv. Davis, 4 Hill, 643 ; St. 88, iii; Heermatis v. Ellsworth, 64 N. Y. 
John V. Palmer, 5 Hill, 599. 159; Stoddardv. Gailor, 90N.Y. 575; Van 

5 Sweetman v. Prince, 26 N. Y. 224 ; Keuren v. Corkins, 66 N. Y. 77, affi'g 

Bordewell v. Colie, i Lans. 141 ; Burt v. 4 Hun, 129 ; s. c. 6 T. & C. 355. 

Dewey, 40 N. Y. 283. ° t R. S. 763, § 42 ; Reed V; Marble, 

* Bordewell v. Colie, i Lans. 141. 10 Paige, 409. 



234 MORTGAGES OF EEAL PEOPEBTT. [§ 334. 

to avoid the effect of payment to the assignor, show that the debtor, 
before making it, in some other way acquired knowledge of the fact. 
Notice may be inferred, of course, from the circumstances attending 
the transaction ; but the true question is one of good faith. The 
failure to produce the bond and mortgage by the mortgagee at the 
time of receiving the payment, with the suggestion of a false reason 
to excuse it, and the insolvency of the mortgagee, are not sufficient, 
as a matter of law, to put the mortgagor on inquiry and charge him 
with notice that the mortgage has been assigned.' A colorable or 
fictitious payment, plainly contrived by the mortgagor and mortgagee 
for the purpose of defrauding the assignee, will not affect his rights,^ 
and the fact of payment must be shown by something more than the 
mere admission or receipt of the mortgagor.' If actual notice of the 
assignment be given to the mortgagor, subsequent payments to 
the mortgagee will be invalid, and will not operate to reduce the 
mortgage debt.* But if no notice is given to him, even a tender 
to the mortgagee, without actual payment,- may discharge the mort- 
gage lien." 

In the absence of notice of the assignment, the mortgagor may 
negotiate with the mortgagee for a discharge of the debt upon a 
surrender of the land." 

If the assignment be properly recorded, it is notice to the holders 
of prior mortgages to such an extent as to entitle the assignee of the 
subsequent incumbrance to be made a party to the foreclosure of the 
senior one.' If, however, by any means the assignment is not duly 
recorded, the assignee must give actual notice to the holder of a prior 
mortgage ; and if he fails to do so, he will be cut off by a decree of 
foreclosure of such mortgage, although he was not made a party to 
the foreclosure. ° 

1 Foster v. Beals, 21 N. Y. 247. ^ Hetzell v. Barber, 6 Hun, 534. 

^ Brown v. Blydenburgh, 7 N. Y. 141. ^ Wanzer v. Cary, 12 Hun, 403. 

' Foster v. Beals, 21 N. Y. 247. ' Vanderkemp v. Shelton, 11 Paige, 28; 

^ Mitchell V. Cook, 17 How. no ; s. c. Pickett v. Barron, 2^ Barb. 505 ; Wins- 

affi'd 29 Barb. 243 ; s. c. rev'd on other low v. McCall, 32 Barb. 241 ; Ely v. Sco- 

grounds, 7 N. Y. (3 Seld.) 538 -, Reeves, field, 35 Barb. 330. 

Gd'n, V. Hayes, 95 Ind. 521. ' Moore v. Sloan, 50 Barb. 442. 



CHAPTEH XL 



THE PAYMENT AND DISCHAKGE OP MOETGAaES. 



WHAT PAYMENT WILL DISCHARGE A 
MORTGAGE. 

i 335- As to whether a payment effects 
a discharge or a transfer. 

336. Keeping mortgage alive by ex- 

press agreement. 

337. A mortgage lien may be kept alive 

to do equity. 

338. A mortgage may be held discharg- 

ed though an assignment be 
taken. 

339. An assignment will always be sus- 

tained as against one having no 
equitable claim. 

340. Any act which suffices to discharge 

a debt. 

341. Loss of the remedy for the debt. 

WHO MAY RECEIVE PAYMENT. 

342. Since the debt is the life of the 

mortgage. 

343. A mortgage made to several per- 

sons to secure several debts or 
liabilities. 

344. The recording acts have applica- 

tion. 

345. Forged certificate of satisfaction. 

346. Authority of agent may be estab- 

lished by estoppel. 

347. When one of several mortgagees 

may acknowledge satisfaction. 

348. One of two or more executors. 

349. A receiver. 

350. County treasurers. 

351-352. Power of a foreign executor 
or administrator. 

353. An assignee of a mortgage who 

holds it as security. 

354. Possession of the bond is in some 

cases evidence of authority to 
collect. 

355. Bond should be produced and sur- 

rendered on payment in full. 



; 356. Where payment should be made. 

357. Where the discharge of a recorded 

mortgage is executed by a per- 
son other than the mortgagee. 

358. Remedy against person unlawful- 

ly cancelling lien. 

359. Payment to an administrator. 

APPLICATION OF PAYMENTS. 

360. Application by the parties. 

361. As between secured and unsecur- 

ed claims. 

362. Where no specific application is 

made by the parties. 

DISCHARGE BY MERGER. 

363. When a, mortgage will be dis- 

charged under the doctrine of 
merger. 

364. The doctrine of merger as applied 

to mortgages is founded upon 
equitable principles. 

365. A merger will not be adjudged for 

the benefit of an infervening in- 
cumbrance. 

366. Merger controlled by estoppel. 

367. A merger can only occur. 

368. No merger unless the title and 

debt are in the same person at 
the same time. 

369. No merger when conveyance is 

set aside. 

370. Purchaser cannot rely on merger 

shown by the public records. 

371. Preventing merger by clause in 

conveyance or assignment. 

372. No merger caused by marriage of 

mortgagor and mortgagee. 

373. When the taking of a higher se- 

curity will extinguish an inferior 
one. 

374. Debt remains though new obliga- 

tion be given. 



236 



MOBTGAGES OF EEAL PEOPEETT. 



§ 375. New mortgage without bond may 
discharge debt. 

376. New obligation or security may 

discharge if so agreed. 

377. No merger in a void security. 

378. Payment of collateral security in 
• general cancels debt. 

379. Merger of mortgage in judgment 

of foreclosure. 

380. Judgment does not merge cause 

of action as between defendants. 

DISCHARGE BY RELEASE OF PART OF 
THE SECURITY. 

381. When a release of a portion of the 

security will cancel the mortgage 
pro tanto. 

382. The reason for this rule. 

383. The mortgagee is not prejudiced 

by release unless he has notice 
of the facts. 

384. What notice is sufficient. 

' 385. The effect of a release by the mort- 
gagee must depend upon the 
circumstances of the case. 

386. Where two parcels of land owned 

by different persons are equit- 
ably bound pro rata. 

387. It is only when the release is 

given in violation of equitable 
rights. 

388. In every case the mortgage will 

only be affected to the extent of 
the value. 

CHANGES IN THE FORM OF THE DEBT. 

389. Lien not commonly affected by 

changes in form of debt. 

390. Court will look at real nature of 

the transaction. 

391. New obligations or securities. 

392. Agreement to take note in pay- 

' ment must be founded on new 
consideration. 

393. Rule as to merger in securities of 

a higher nature. 

DISCHARGE BY EXTENDING TIME FOR 
PAYMENT OF MORTGAGE DEBT. 

394. Where the property of one per- 

son is pledged to pay the debt 
of another. 

DISCHARGE BY ESTOPPEL. 

395. If the mortgagee should represent. 

DISCHARGE BY TENDER OF PAYMENT. 

396. Rule at common law. 

397. Rule in this State. 



§398, 
399. 



400. 
401. 
402. 



403. 



404. 

405 
406- 

409, 



A valid tender can be made. 

The tender must be kept good to 
sustain action for affirmative re- 
lief. 

What tender is sufficient. 

To whom tender may be made. 

Mortgagee must accept a proper 
tender without imposing condi- 
tions. 

Where a mortgage is given con- 
ditioned for the support of the 
mortgagee. 

Mortgagee may rely on decisions 
of the highest courts. 

Tender must be clearly proved. 

408. Who may make a tender suffi- 
cient to discharge the lien. 

Junior lienor may not discharge 
by making a tender. 



PRESUMPTION OF PAYMENT FROM LAPSE 
OF TIME. 

410. When a mortgage is discharged 

from lapse of time. 

411. The statute controls. 

412. Delay in foreclosing for less than 

statutory period. 

413. Payments made by mortgagor 

after granting mortgaged estate. 

414. Mortgage under seal not barred 

until twenty years, though debt 
be barred in six. 

415. The rights of the mortgagor, like 

those of the mortgagee, may 
also be barred by lapse of time. 

416. Possession by a mortgagor of the 

bond and mortgage. 

DISCHARGE OF MORTGAGES UPON THE 
RECORD. 

417. Statute. 

418. Certificate of satisfaction is with- 

in the recording acts. 

419. Other means of evidencing dis- 

charge. 

420. The record of discharge is no 

more valuable than the certifi- 
cate of satisfaction. 

421. Who may execute certificate of 

satisfaction. 

422. Discharge by officer of limited 

powers. 

423. Right of person paying mortgage 

to certificate of satisfaction. 

424. Actions to discharge mortgages. 

425. Who may bring action to discharge 

mortgage. 



§335.] 



PAYMENT AND DISCHARGE. 



237 



§ 426. Action for damages for refusal to 
execute discharge. 

427. Effect of discharging lien upon 

the debt. 

428. Special proceedings to discharge 

mortgages of record in certain 
cases. 

429. Such petition may be presented 

to the Supreme Court. 

430. This statute was designed. 

SETTING ASIDE AND CANCELLING THE 
DISCHARGE OF A MORTGAGE. 

431. Certificate of satisfaction cancel- 

led for fraud or mistake. 

432. A release can only be operative 

when it is duly delivered. 

433. Reinstating mortgage so as to 

protect against junior liens. 

434. Where a valid lien is discharged 

in consideration of an invalid 
one. 

435. Satisfaction on the record set 

aside, 

436. Who may resist the reinstatement 

of a cancelled mortgage. 

437. The law protects only the vigi- 

lant. 

438. Action for damages for unauthor- 

ized discharge. 



REISSUE OF PAID MORTGAGE. 

439. Mortgage absolutely cancelled by 
payment of debt. 



§ 440. A mortgage made at its inception 
to secure future advances. 

441. Debt must be actually satisfied. 

442. Reissued mortgage sustained to 

do equity. 

443. Junior titles and liens always pro- 

tected. 



SUBROGATION. 



which 



444. General principles upon 
subrogation is allowed. 

Volunteer or meddler is not pro- 
tected by subrogation. 

For the purpose of being entitled 
to subrogation. 

Even where there is only a color- 
able obligation to pay. 

The right of a junior incumbrancer 
to be subrogated. 
449. Lender of money to be used in 
paying prior lien. 

Usurer not protected by subroga- 
tion. 

Subrogation may be awarded to 
compel contribution. 

Subrogation may also be decreed 
to remedy a mistake. 

Preventing an inequitable claim 
for dower. 

Surety subrogated to security 
given to co-surety. 

Subrogation of creditor to collat- 
eral securities held by sureties. 

Pleadings to assert right of sub- 
rogation. 



445- 
446. 

447. 
448. 



450. 



451. 



452. 



453- 



454- 



455- 
456. 



WHAT PAYMENT WILL DISCHARGE A MORTGAGE. 

§ 335. As to whether a payment effects a discharge or a trans- 
fer. — The fact that a mortgagee pays money to thfe mortgagor, or 
that, after the making of the mortgage, the mortgagor becomes in- 
debted to the mortgagee in continuing the transactions out of which 
the mortgage indebtedness arose, does not necessarily operate to satisfy 
or discharge the mortgage. Whether the payment is or is not to be 
credited on the mortgage debt, or the new debt is or is not to be off- 
set against the old, are questions purely of fact, depending upon the 
intentions of the parties.' 

Payment of a mortgage by a third person is a good payment if it is 
afterward ratified.^ 

' Peck v. Minot, 3 Abb. App. Dec. ' Heermans v. Clarkson, 64 N. Y. 
465 ; Bockes v. Hathorn, 20 Hun, 503 ; 171. 
Toll V. Hiller, ii Paige, 228. 



238 MORTGAGES OF EEAL I'ROPRRTr. [§ 336. 

§ 336. Keeping mortgage alive by express agreement. — Even 
if the payment is made by the mortgagor out of his own means on 
account of the mortgage debt, yet if it is agreed at the time of the 
payment that the mortgage shall not be extinguished, but shall be 
kept alive and be transferred to another creditor of the mortgagor, 
and payment is made and received on that condition, the agreement 
is valid, and such a payment will not extinguish the mortgage ; and 
the creditor to whom the mortgage is assigned under such an arrange- 
ment may enforce it. No one is injured by such a transaction. The 
debtor could make the payment for account of the creditor to whom 
he desired the mortgage assigned, and the creditor could ratify the 
transaction by accepting the assignment. The result is the same as 
if the creditor had himself purchased the mortgage with means fur- 
nished by the debtor.' Thus the performance of an agreement by a 
mortgagor to pay the mortgagee a sum equal to the amount of his 
debt, if he would assign the mortgage to the mortgagor's attaching 
creditor as security instead of the attachment, does not extinguish 
the mortgage ; and it can be enforced by the creditor, although, for 
a temporary purpose, he had reassigned it to the mortgagee, who 
afterward assigned it back again." 

Where a person paying the amount due upon a bond and mortgage 
is under no equitable obligation to discharge it, the question as to 
whether such payment is or is not a discharge will be governed by 
the intent with which the payment is made, and tlje mortgage will 
not be deemed to be discharged if the intent was to keep it alive as a 
valid security.' 

Where money was advanced to a mortgagor to take up a mortgage, 
and the money was paid to the mortgagee, who, some days later, 
assigned the mortgage to the person who had advanced the money, it 
was held that if this assignment was made in pursuance of a contract 
between the assignee and the mortgagor, it was a valid security ; but 
if the assignment was made after the money had been paid to the 
mortgagee, and not in pursuance of any contract, the mortgage was 
extinguished and afforded no security to the assignee." 

'Per RAPALLO,J.,inHubbellv. Blakes- ^ Sheddy v. Geran, 113 Mass. 378. 

lee, 71 N. Y. 63, 70, rev'g s. c. 8 Hun, ^ Coles v. Appleby, 87 N. Y. 114 ; 

603 ; Coles V. Appleby, 22 Hun, 72 ; Champney v. Coope, 32 N. Y; 543 ; Har- 

Sheddy v. Geran, 113 Mass. 378 ; BoUes beck v. Vanderbilt, 20 N. Y. 395 ; Kel- 

V. Wade, 4 N. J. Eq. (3 Green.) 458 ; Hoy logg v. Ames, 41 N. Y. 263. 

V. Bramhall, 19 Id. 74 ; Goulding v. ■■ Nosier v. Haynes, 2 Nev. 53. 
Bunster, 9 Wis. 513. 



§§337-338. J PAYMENT AWD DISCHARGE. 239 

§ 337. A mortgage lien may be kept alive to do equity. — A 
mortgage is not discharged, either as to the owner of the property or 
as to subsequent incumbrancers, if paid by the owner of the equity of 
redemption, but with the funds of a third person, for the purpose of 
purchasing it for such third person.' 

Where a bond and mortgage was owned by a corporation which 
declined to execute an assignment, but dehvered instead a certificate 
of satisfaction, it was nevertheless held to be unpaid, and was enforced 
in favor of a person who, at the request of the owner of the equity 
of redemption, and under an agreement for the assignment, had paid 
the money." 

A mortgage is not satisfied when paid by joint mortgagors un- 
equally, and assigned by consent to the wife of the largest payer, ^ or 
when paid by and assigned to one of two tenants in common of the 
equity of redemption.' In these cases the mortgage survives for the 
purpose of enforcing contribution. 

A mortgage given to an accommodation indorser of a note to in- 
demnify him, is not discharged by a payment of the note made by 
such indorser, even though a memorandum of full payment is made 
on the note.' On the same principle a mortgage of personal property, 
made to secure an indorser on a note, is not discharged by the in- 
dorser's lending money to the mortgagor which is applied to the pay- 
ment of the note, unless the parties intend that the mortgage shall 
thereby be discharged." 

A junior mortgagee who pays a senior mortgage, and has it assigned 
to himself, and afterward assigns it to a third person in order that a 
sale may be made under it, and attends at such sale and participates 
therein by bidding on the property, is estopped from claiming that 
the mortgage is paid, though the result of the sale is to deprive him 
of his junior lien.' 

§ 338. A mortgage may be held discharged though an as- 
signment be taken. — The same principles of equity which will keep 
a mortgage alive in order to do justice, will operate to decree a mort- 
gage satisfied where that is necessary to protect substantial rights, and 



1 Denton v. Cole, 30 N. J. Eq. 244 ; * Barker v. Flood, 103 Mass. 474. 
Nosier v. Haynes, 2 Nev. 53 ; Champney ' Bendy v. Townsend, 109 U. S. 665. 
V. Coope, 32 N. Y. 543. ^ Bryant v. Pollard, 92 Mass. (10 Al- 

" Johnson v. Parmly, 14 Hun, 398. len) 81. 

3 Gantt V. Gantt, 15 S. Car. 610. " Pursley v. Forth, 82 111. 327. 



240 M0ETGAGE8 OF EEAL PKOPEETT. [§ 338. 

payment by a person equitably bound is a discbarge, even though an 
assignment be taken.' 

A person who with the funds of the mortgagor and. as his agent 
has paid off a mortgage, cannot keep the security alive by having it 
assigned to himself -^ even if he has a valid claim against the mort- 
gagor and merely seeks to hold the mortgage as security for such 
claim.' 

If an assignment is made of a mortgage at the request of the mort- 
gagor who furnishes a part of the consideration, the mortgage in the 
hands of the assignee and against subsequent incumbrancers at the 
time of the assignment, is paid to the extent of the portion of the 
purchase price advanced by the mortgagor.' 

A grantor who covenants against incumbrances and who subse- 
quently pays off a mortgage existing at the time of the conveyance, 
cannot, by taking an assignment to himself, keep the security alive, 
since the payment must be regarded as having been made for the 
benefit of the grantee.^ 

If a grantee who has taken land expressly subject to a mortgage 
which he covenanted to pay, pays the amount due on the mortgage 
and takes an assignment to himself, the mortgage will be deemed 
paid as to the widow of the grantor who joined in the mortgage but 
not in the deed." So a purchaser who has not assumed a personal 
obligation to pay a mortgage, but who has taken his title subject to 
it, may not, by taking an assignment of the mortgage debt, obtain a 
right to set it off against an unpaid balance stiU owing to his vendor 
on the purchase.' 

When a married woman gave to a firm of which her husband was 
a member, her note for his indebtedness to the firm ; and the firm 
indorsed the note and gave a mortgage to secure its payment, and she 
voluntarily paid the note and took an assignment of the mortgage, it 
was held that the mortgage was discharged by her.' 



' Knolls V. Barnhart, 71 N. Y. 474 ; " Sheffield's Ex'r v. McClain, 18 N. J. 

Mickles v. Dillaye, 15 Hun, 296; Mickles Eq. iz8. 

V. Townsend, 18 N. Y. 575 ; Russell v. ' Nichols v Lee, 10 Mich. 526. 

Pistor, 7 N. Y. 171 ; Fitch v. Cotheal, 2 « Hoy v. Bramhall, 19 N. J. Eq. 74. 

Sand. Ch. 29 ; Wadsworth v. Williams, ^ Brundred v. Walker, 12 N. J. Eq. 

100 Mass. 126 ; Brown v. Lapham, 3 140. 

Cush. 554; Braman v. Dowse, 12 Cush. ^ McCabe v. Swap, 96 Mass . (14 Allen) 

227 ; Collins v. Torry, 7 Johns. 278 ; 188. 

Clay V. Banks, 71 Ga. 363 ; Carlton v. ' Atherton v. Torrey, 43 Ind. 211. 

Jackson, 121 Mass. 592. ° Whitney v. Franklin, 28 N. J. Eq.126. 



§§339-340.] PAYMENT AND DISCHAKaE. 241 

§ 339. An assignment will always be sustained as against 
one having no equitable claim -upon the person paying its consid- 
eration. So, where the holder of an equity of redemption in a parcel 
of land, who was under no obligation to pay either of two mortgages 
existing on the land and duly recorded, in ignorance of the second 
mortgage, for the purpose of perfecting his title, made a part payment 
on the first mortgage, and afterward, on being informed of the second 
mortgage, paid the balance due on the first mortgage and caused that 
mortgage to be assigned to a third person in trust for himself, it was 
held that the holder of the second mortgage was not entitled to re- 
deem the first except by paying its full amount." 

It wiU not lie in the mouth of a mortgagee whose entire demand 
has been paid, to complain that the assignment he gave should have 
been a certificate of satisfaction, and that he was defrauded into exe- 
cuting it." 

§ 340. Any act which suffices to discharge a debt discharges 
also a mortgage made to secure it, and the surrender of a note by the 
payee to the maker is prima facie a satisfaction or release of the 
debt' 

A parol agreement by which the mortgage debt is consented to be 
cancelled in compromise of a fraud, is a sufficient satisfaction of it.* 

PajTuent of a debt secured by mortgage discharges the lien." The 
debt is, indeed, the life of the mortgage, without which it can have 
no existence, since there can be no security where there is nothing 
which can be secured. So it has been said that the arrest of the 
mortgagor on final process, discharges both the debt and the Hen, 
though this is not the effect of an arrest upon mesne process." 

A mortgage made to a surety on a note of the mortgagor for his 
indemnity, has no vitality after a new note has been given to, and 
accepted by, the creditor, signed by the mortgagor with other sure- 
ties,' or after the discharge of the surety by the creditor,' or after the 
note has been paid." 

A mortgage has been held to be discharged where a payment was 
made with intent to efEect such discharge, but, by mistake, a certifi- 

■ Ryder v. Gaes, 130 Mass. 227. * Terry v. Woods, 14 Miss. 139. 

' Jewittv. Davis, 92 Mass. (10 Allen) 68. ' Abbott v. Upton, 36 Mass. (19 Pick.) 

' Sherman v. Sherman, 3 Ind. 337. 434. 

* Green v. Fry, 93 N. Y. 353. ' Stunner v. Bachelder, 30 Me. 35. 

' Smith V. Durell, 16 N. H. 344 ; 41 ' Franklin Bank v. Pratt, 31 Me. 

Am. Dec. 733. . 501- 
16 



242 MORTGAGES OF EEAL PEOPERTY. [§ 341. 

cate of satisfaction of a similar mortgage on adjoining property was 
given and recorded, by means of which the mortgagee lost his Ken on 
the mortgage described in the certificate.' The mistake was held to 
be imputable to the mortgagee under the special circumstances of the 
ease. 

§ 341. Loss of the remedy for the debt. — ^Where a mortgage 
was given by a principal debtor to his surety, and was transferred by 
the latter to the creditor for value, the subsequent discharge in bank- 
ruptcy of both principal and surety was held not to destroy the Hen 
of the mortgage, or to afEect the right of the aasignee to foreclose.' 
So, the Hen of a mortgage is not impaired by a discharge of the mort- 
gagor from the debt by composition proceedings in bankruptcy.' 
And where one mortgaged his real estate to secure the debt of an- 
other, a subsequent discharge in bankruptcy of the latter did not re- 
lease the mortgagor from his obHgation on the mortgage as surety." 

A discharge from the debt under a State insolvent law will not 
operate to discharge the lien of a mortgage given to secure it.° 

A mortgage may be enforced though the debt which it is given to 
secure is barred by the statute of limitations." 

Where the claim of the mortgagee against the personal estate of a 
deceased mortgagor was lost by failure to present the note secured by 
mortgage within the time required by law, this did not preclude him 
from enforcing the mortgage security.' 

And, where the holder of a promissory note indorsed it to a third 
person, and gave the latter a mortgage to secure its payment, and the 
assignee failed to charge the indorser by notice of non-payment, this 
did not release the land from the burden of the mortgage.* 

Where a mortgagor conveys the mortgaged premises to a mort- 
gagee, who assumes payment of the debt, the grantee thereupon be- 



' Barnes v. Wintringham, 32 Hun, 43. « Gillette v. Smith, 18 Hun, 10 ; Pratt 

2 Carlisle v. Wilkins, Adm'r, 51 Ala. v. Huggins, 29 Barb. 277 ; Heyer v. 
371. Pruyn, 7 Paige, 465 ; Borst y. Corey, 

3 Cohn V. Colby, 57 How. 168. 15 N. Y. (i Smith) 510 ; Thayer v. Mann, 
* Burtis, Adm'r, v. Wait, 33 Kans. 19 Pick. 537; Baldwin v. Norton, 2 Conn. 

478 ; In re Campbell, i N. B. R. 165 ; 163 ; Spears v. Hartley, 3 Esp. 81 ; 

Cole V. Duncan, 58 111. 176 ; U. S. Rev. Toplis v. Baker, 2 Cox, 123 ; Powell v. 

St. (1878), § 5118 ; In re Hartell, 7 N. B. Smith, 30 Mich. 451. 

R. 559 ; Reed v. BuUington, 11 N. B. R. 'Grafton Bank v. Doe, 19 Vt. 463. 

408; Meeks v. Whately, 10 N. B. R. 'Mitchell v. Clark, 35 Vt. 104; Hilton 

498 ; Roberts v. Wood, 38 Wis. 60. v. Catherwood, 10 Ohio St. 109. 
'Heyer v. Pruyn, 7 Paige, 465, 469. 



§ 342.] PAYMENT AND DISCHARGE. 243 

comes the primary debtor, and the land also stands as the mortgagor's 
indemnity from his personal obligation. A release of the mortgagor, 
under these • circumstances, from all liability from the debt, is a per- 
sonal discharge merely, and does not discharge either the mortgage 
security or the personal obligation of the purchaser.' And even if 
the purchaser has made no personal covenant to assume, but has 
merely taken the land charged with the lien, such a release will not 
exonerate the land." 

WHO MAT EISCEIVE PAYMENT. 

§ 342. Since the debt is the life of the mortgage, payment of 
the debt -will discharge the lien.° The debt may be paid or dis- 
charged in any way that the parties may agree upon.* 

The person entitled to receive payment of the debt is the person 
whose certificate of satisfaction is necessary to cancel the Hen, and this 
is so even if such person is not the nominal mortgagee." Thus, where 
a mortgage was made to Jasper Waterman, by the terms of which in- 
terest was to be paid annually to his mother, Sarah "Waterman, during 
her life, and at her death part of the principal was to be paid to Jasper, 
and the balance to his brother's minor children as they respectively 
became of age ; and after the death of the mother and the coming of 
age of such infants, the money was paid to Jasper, who executed a 
certificate of satisfaction, such certificate of satisfaction was set aside 
as unauthorized and void.' The infant beneficiaries under the mort- 
gage were held to be, for all practical purposes, parties to the mort- 
gage as effectually as if they had been assignees of it.' 

The statute directing the clerk to discharge a mortgage on the 
record on the presentation of a certificate of the mortgagee, his per- 
sonal representatives or assigns, acknowledged, etc.,' does not give 
to the mortgagee power to discharge it when he has no right to re- 
ceive the money secured by it." 

' Bentley v. Vanderheyden, 35 N. Y. ^Waterman v. Webster, 33 Hun, 611; 

677. McPherson v. Rollins, 21 W. Dig. 254. 

*Jumel V. Jumel, 7 Paige, 591 ; Tripp 'Citing Pattison v. Hull, 9 Cow. 747 ; 

V. Vincent, 3 Barb. Ch. 613. Barlow v. Myers, 64 N. Y. 44; Payne v. 

* Jackson v. Stackhouse, i Cow, 122 ; Wilson, 74 Id. 354, 355; Perot v. Lavas- 
Jackson V. BlQdget, 5 Cow. 202 ; Lang- seur, 21 La. Ann. 529. 
don V. Buel, g Wend. So. ' i R. S. 761, § 28. 

*GriswoId V. Griswold, 7 Lans. 72. "Waterman v. Webster,, 33 Hun, 611 ; 

'Stiger V. Bent, iii 111. 328 ; Bank v. Heilbrun v. Hammond, 13 Id. 475 ; Bel- 

Eldridge, 102 U. S. 545. don v. Meeker, 47 N. Y. 308. 



244 MORTGAGES Oi- REAL PEOPEKTT. [§§ 343-344. 

A mortgagor may pay or settle with the person having the appar- 
ent authority to receive satisfaction, and a discharge executed by 
such person will prevail against a secret equity, of which the person 
making the payment has no notice.' 

A release from the heirs of a deceased mortgagee will be inopera- 
tive to cancel the mortgage ; such release must be executed by his 
executor or administrator.^ A release from the next of kin will also 
be void." 

§ 343. A mortgage made to several persons to secure sev- 
eral debts or liabilities can only be fully discharged by the consent 
(' of all persons claiming rights under it.* Thus, where three indorse- 
ments were procured upon a bill of exchange and a mortgage of in- 
demnity given to the three indorsers ; and two of them thereafter 
acknowledged satisfaction after a new obligation, similarly indorsed, 
had been given to raise money for its payment, it was held that an 
entry of discharge on such acknowledgment was no release.' 

A mortgage made to an indorser by the maker of a note, merely to 
secure the indorser, may be discharged by the latter at his pleasure ; 
but where it is agreed that the indorser shall hold the mortgage, not 
only for his own security, but also for security of the creditor, a con- 
veyance of the mortgaged property to a party who had notice of the 
agreement will not defeat the equitable rights of the creditor." The 
rule would be different if the conveyance had been to a purchaser 
paying value on the faith of the satisfaction and without notice of 
the special purpose for which the mortgage had been given.' 

If one of two persons holding several demands secured by the 
same mortgage is also the duly authorized agent of the other, a pay- 
ment to him discharges the debts of both." 

§ 344. The recording acts have application to a certificate of 
discharge of a mortgage, and therefore where a mortgage is made to 
secure one or more notes, a discharge upon the record is valid, so as 
to protect a purchaser or junior incumbrancer, if there be no record 
of any assignment of any of such notes, and in the absence of notice.' 



' Mason v. Beach, 57 Wis. 607. * Hartford & N. Y. Transportation 

' Douglas V. Durin, 51 Me. 121. Co. v. First Nat. Bank, 46 Conn. 569. 

2 Woodruff V. Mutscher, 34 N. J. Eq. ' Mason v. Beach, 57 Wis. 607. 
33, ' Ely V. Bush, 89 N. C. 358. 

■* Burnett v. Pratt, 22 Pick. 556 ; Peo- ° Swartz's Ex'r v. List, 13 Ohio St. 

pie V. Keyser, 28 N. Y. 230. 419 ; Cornog' v. Fuller, 30 Iowa, 211 ; 

' Thorton v. Irwin, 43 Mo. 153. Bowling v. Cook, 39 Iowa, 200 ; Hen- 



§§ 345-846.] PAYMENT AND DISCHARGE, 245 

But a mortgagor who pays to the original mortgagee after the transfer 
of the note is not entitled to any protection.' 

§ 345. Forged certificate of satisfaction. — No right can be 
founded upon a forgery, and a forged certificate of satisfaction, 
though duly recorded, will aSord no protection to a purchaser rely- 
ing upon it." But it has been contended and held that a person 
whose rights are attempted to be affected by such a forgery owes a 
duty to third persons who may rely upon the record either to enforce 
his mortgage by foreclosure, or bring an action to reinstate it upon 
the record within a reasonable time ; and that, if he fails to do one 
of these, he may be deemed to be estopped from alleging that the 
paper is a forgery.' The notion that a man may be estopped by not 
bringing a lawsuit, is not in harmony with the general current of 
judicial reasoning, and the case above alluded to has been criticised 
and overruled.* The only obligation which a person owes to others 
likely to rely upon a forged paper purporting to be executed by him, 
is to answer truthfully all inquiries made to him concerning it, and 
not to keep silence when silence could be construed as an affirmation 
of the genuineness of the paper. He must be honest and candid, 
and when a failure to speak' may operate as a fraud upon third per- 
sons, even silence may operate as an estoppel." 

But no affirmative action is demanded, and the forged paper being 
a nullity may be disregarded until some claim is made under it.' 

Where a mortgagee indorsed his name with seal on the mortgage, 
and parted with the possession of it, and satisfaction was thereafter 
written above his signature vrithout his knowledge, and duly recorded, 
an innocent purchaser was held to be protected.' 

§ 346. Authority of agent may be established by estoppel. — 
No equity arises, even in favor of a subsequent incumbrancer, where 



derson v. Pilgrim, 22 Tex. 464; Bacon 550; Horn v. Cole, 51 N. H. 287 ; Ste- 

V. Van Schoonhoven, ig Hun, 158, affi'd vans v. Dennett, Id. 324 ; Gregg v. Von 

87 N. Y. 446; Ayers v. Hays, 60 Ind. Phul, i Wall. 280; Hill v. Epley, 31 

452. Pa. St. 331 ; Chapman v. Chapman, 59 

' Burhams v. Hutcheson, 25 Kans. Id. 214 ; Pickard v. Sears, 6 Ad. & El. 

625. 469 ; Gregg v. Wells, 10 Id. 90 ; Niven 

' Harris v. Cook, 28 N. J. Eq. 277. v. Belknap, 2 Johns. 573. 

" Costello V. Mead, 55 How. 356. * Viele v. Judson, 82 N. Y. 34 ; Chand- 

* Viele V. Judson, 82 N. Y. 34, 39, ler v. White, 84 111. 435 ; Meley v. Col- 
overruling Costello T. Mead, supra. lins, 41 Cal. 663. 

' Viele V. Judson, 82 N. Y. 34, 39 ; ' City Council of Charleston v. Ryan, 

Cornish v. Abington, 4 Hurls & Norm. 23 S. C. 339 ; 53 Am, Rep. 713. 



246 MORTGAGES OF EEAL PKOPEETY. [§§347-348. 

there is a release by one claiming to be the agent of the mortgagee, 
but is not so.' But an authority may be inferred from the actions of 
a mortgagee, which would estop him from denying such authority ; 
as, where a father has so conducted himself as to authorize third per- 
sons to believe that his son was the real owner of the mortgage." 

§ 347. When one of several mortgagees may acknowledge 
satisfaction. — According to the decisions in this State, a mortgage 
is but a security, and is treated as a mere personal contract." If 
\ there be more than one mortgagee, so far as the mortgagor is con- 
icerned they are to be regarded as one person, and he has a right to 
Ideal with each as representing all." By accepting a joint mortgage, 
each mortgagee gives to every other the power which this principle 
imphes, as each member of a copartnership clothes each of his co- 
partners with power to bind him in all matters within the scope of 
their joint business. Except for the purpose of receiving payment 
and acknowledging satisfaction, the powers of an ordinary joint ob- 
ligee over the obligation would not probably correspond with those 
of a partner, but to that extent they are identical, and the obligor 
may safely pay to one of several joint obligees." The death of one of 
two joint mortgagees does not deprive the other of the right to receive 
payment of and to discharge a mortgage held by both, but renders 
such right exclusive in the survivor." In all cases, however, of a dis- 
diarge of a mortgage by one of two or more joint mortgagees, the 
person receiving the payment is, in equity, treated as a trustee for 
the money received by him for the benefit of those entitled. His 
right to receive payment and discharge the mortgage is a mere legal 
right, and he has no exclusive title to the fund.' 

§ 348. One of two or more executors may lawfully receive pay? 
ment of and discharge an obhgation due to the estate of his testator,, 
whether it be made to his testator or to him and his co-executor, or 

' McKnight v. Clark, 29 N. J. Eq. 14 Johns. 172 ; Bulkley v. Dayton, 14 

105. Johns. 387 ; Murray v. Blatchford, i 

' McCabe v. Farnsworth, 27 Mich. 52. Wend. 583 ; Stuyvesant v. Hall, 2 Barb. 

' Green v. Hart, i Johns. 580 ; Runyan Ch. 151 ; Wright v. Ware, 58 Ga. 150. 

V. Mersereau, 11 Johns. 534 ; Martin v. « Per Seldln, J., in The People v. 

Mowlin,' 2 Burr. 978. Keyser, 28 N. Y. 235 ; Mutual Life Ins. 

* Carman v. Pultz, 21 N. Y. 550. Co. v. Sturges, 32 N. J. Eq. 678. 

' The People v. Keyser, 28 N. Y. 235 ; ' Petty v. Styward, i Eq. Cas. Abr. 

Bowes V. Seeger, 8 Watts & Serg. 822 ; 290 ; 2 Fonbl. Eq. 103, and notes ; 2 

Pierson v. Hooker, 3 Johns. 68 ; Austin Story's Eq. Jur. § 1206 ; 2 Powell on 

V. Hall, 13 Johns. 286 ; Fitch v. Forman, Morts. 699, 700. 



§§349-351.] PATMEKT AND DISCHARGE. 247 

■whether his co-executor be dead or alive ; and one of two adminis- 
trators may do the same.' The same power belongs to a sm-viving 
trustee." 

§ 349. A receiver authorized to execute upon payment formal 
satisfaction and discharge of mortgages in his hands as such oflBcer, 
has authority to receive payment of the amount of a mortgage, 
although the same may not be due at the time.° 

§ 350. County treasurers have the power to release the whole 
or any portion of the property covered by mortgages to them, and 
that without direction of the court, and without the knowledge of 
the beneficiaries.' But this rule does not prevail where the moneys 
invested are the proceeds of the sale of infants' lands in partition, and 
such mortgages can only be regularly cancelled by order of the court.* 

§ 351. Power of a foreign executor or administrator." — It is a 
principle arising from international comity, that personal property 
has no locality, and that it is subject to the law which governs the 
pBrson of the owner, as well in respect to the disposition of it by 
act inter vivos, as to its transmission by last will and testament, and 
by succession upon the owner dying intestate.' A mortgage is per- 
sonal property, and the rights of next of kin, legatees, and others, to 
a mortgage, are to be determined by the law of the domicile of the 
mortgagee. But the right which an individual may claim to personal 
property in one country, under title from a person domiciled in an- 
other, can only be asserted by the legal instrumentalities which the 
institutions of the country where the claim is made have provided. 
The foreign law furnishes the rule of decision as to the vahdity of the 
title to the thing claimed ; but in respect to the legal assertion of that 
title, it has no extraterritorial force. As a result of this doctrine, it 
is now generally held everywhere, and it is well settled in this State, 
that an executor or administrator appointed in another State has not, 



' Stuyvesant v. Hall, 2 Barb. Ch. 151 ; ^ Heermans v. Clarkson, 64 N. Y. 171 ; 

Douglass V. Satterlee, 11 Johns. 16 ; Mur- Olcott v. Heermans, 3 Hun, 431. 

ray v. Blatchford, i Wend. 583 ; Wheeler * Baldwin v. Crary, 30 Hun, 422. 

V. Wheeler, 9 Cow. 34 ; Bogert v. Her- ' Board of Supervisors of Tompkins 

tell, 4 Hill, 492 ; People v. Miner, 37 Co. v. Bristol, gg N. Y. 316. 

Barb. 466 ; 23 How. 223, rev'g s. c. 32 ^ See articles in 34 Alb. L. J. 263, 286, 

Barb. 612 ; Weir v. Mosher, 19 Wis. 311. 'Story's Confl. of Laws, §§ 376, 380, 

' Hill on Trusts and Trustees (3d Am. 383 ; 2 Kent's Cora. 428, 429 ; Holmes v. 

ed.) 442 ; Lewin on Trusts and Trustees, Remsen, 4 Johns. Ch. 460 ; Shultz v. 

284; The People v. Keyser, 28 M. Y. Pulver, 3 Paige, 182; s. c. 11 Wend. 

228 ; The People v. Sigel, 46 How. 151. 363 ; Vroom v. Van Home, lo Paige,S49, 



248 MORTGAGES OP REAL PROPERTY. ; [§§ 352-353. 

»s such, any authority beyond the sovereignty by virtue of whose 
laws he was appointed.' But if residents of this State have in their 
possession property which belongs to a party domiciled abroad, or are 
indebted to him, they may recognize any valid title claimed under 
him arising out of any act m pais, by testament or by succession 
upon intestacy, and may voluntarily deliver over the property or 
make payment of the debt. In Vroom v. Van Home (10 Paige, 549), 
Chancellor Walwoeth stated that the result of the cases in this State 
seemed to be that a foreign administrator appointed by the proper 
tribunal of the decedent's domicile, was authorized to take charge of 
the property here, and to receive debts due to the decedent in this 
State, where there was no conflicting grant of letters here, and it could 
be done without suit.'' 

§ 352. {Continued^ — An executor or administrator of a deceased 
non-resident mortgagee, appointed by the proper jurisdiction in the 
place of domicile of the mortgagee, may receive payment of the 
mortgage, though our courts will not aid him in compelling payment. 
He may even foreclose the mortgage by advertisement in this State, 
that being a matter of contract and not of jurisdiction," and his as- 
signee may foreclose by action, the disability to sue being personal, 
and not an infirmity inhering in the subject of the action,'' but he 
cannot himself be heard in our courts vrithout having quahfied under 
our laws. If there be a conflict between a foreign executor or ad- 
ministrator and one appointed in this State, the authority of the 
domestic executor or administrator to receive payment of debts and 
to discharge mortgages is exclusive, and a satisfaction of a mortgage 
by a foreign executor or administrator is no defense to an action by 
the domestic executor or administrator to foreclose." 

§ 353. An assignee of a mortgage, who holds it as security. — 
When a mortgage is assigned as security, the assignee may foreclose 
xnd hold the fund over and above his debt in trust for the assignor,' 



' Denio, J., in Parsons v. Lyman, 20 ^ Doolittle v. Lewis, 7 Johns. Ch. 45 ; 

N. Y. 112 ; Morrell v. Dickey, i Johns. Averill v. Taylor, 5 How. 476 ; s. c. i 

Ch. 153; Doolittle V. Lewis, 7 Johns. Ch. Code R. N. S. 213. 

45 ; Vroom v. Van Home, 10 Paige, ■* Peterson v. Chemical Bank, 29 How. 

549. 240 ; s. c. 32 N. Y. 21 ; Smith v. Tiffany, 

' Parsons v. Lyman, 20 N. Y. 115 ; 16 Hun, 552. 

Trecothickv. Austin, 4 Mason, 33; Will- ' Stone v. Scripture, 4 Lans. 186. 

iams V. Storrs, 6 Johns. Ch. 353 ; Doc- 'Slee v. Manhattan Co., i Paige, 48 ; 

little V. Lewis, 7 Johns. Ch. 45. Norton v, Warner, 3 Edw. 106. 



§ 354.] PAYMENT AND DI8CHAEGE. 249 

and, since he may compel payment, he may lawfully receive it and 
give a sufScient acquittance and discharge. 

§ 354. Possession of the bond is in some cases evidence of an 
authority to collect. — Payment may as well be made to an agent of 
the mortgagee as to the mortgagee personally. Possession of the 
mortgage, and particularly of the bond, as representing the debt, has 
been thought to be evidence of authority to receive payment of in- 
terest and even of principal.' Payments made in good faith to the 
son of the mortgagee in possession of the papers are valid, but the 
presumption of authority in the son to receive payments ceases on 
the death of his father.' "Where money has been invested through an 
attorney, who is allowed to retain possession of the bond and mort- 
gage, these facts together justify the mortgagor in assuming that the 
attorney is authorized to make collections both of principal and inter- 
est, and to collect the principal in one sum or in instalments. In 
order to afEord a perfect protection to the mortgagor, however, he 
should take the precaution to require the production of the bond at 
the time of each payment, and the indorsement thereon of the pay- 
ments as made. The withdrawal of the bond by the mortgagee will 
work a revocation of the imphed authority.' On the same principle, 
the possession of the bond by a legatee, entitled under i will to the 
interest for life, is evidence of an authority to collect such interest ; 
though, if the principal be not due, it does not authorize a collection 
of the principal.* It is incumbent on a debtor who makes a payment 
to an attorney to show that the securities were in the attorney's pos- 
session on each occasion when the payments were made, and it is not 
incumbent on the creditor to show notice to the debtor of the with- 
drawal of the papers from the possession of the attorney." 

An attorney with whom a bond and mortgage is intrusted " to be 
foreclosed,"- is noifc authorized to receive notes for its payment, pay- 



' Van Keuren v. Corkins, 4 Hun, izg, loi ; Smith v. Kidd, 68 N. Y. 130, 137 ; 

affi'd 66 N. Y. 77. Doubleday v. Kress, 50 N. Y. 410 ; Henn 

' Megary v. Funtis, 5 Sandf. 97. v. Coninsby, i Ch. Cas. 93 ; Haines v. 

^ Williams v. Walker, 2 Sandf. Ch. Pahlman, 25 N. J. Eq. 179 ; Stiger v. 

325 ; Hatfield V. Reynolds, 34 Barb. 612 ; Bent, iii III. 328. 

Brown v. Blydenburgh, 7 N. Y. (3 Seld.) ^ Giddings v. Seward, 16 N. Y. (2 Smith) 

141; Story on Agency, § 104 ; Whitlock 365. 

V. Waltham, i Salk. 157 ; River Clyde ' Smith v. Kidd, 68 N. Y. 130 ; Brew- 
Trustees V. Duncan, 25 Eng. L. & Eq. ster v. Games, Ct. of App. Dec. 7, 1886; 
19 ; Owen v, Barrow, 4 Bos. & Pull. 35 Alb. L. J. 95 ; probably in 103 N. Y. 



250 MOETG-AaES OF REAL PROPERTY. [§ 355. 

able at a future day, nor is he authorized to extend the time of pay- 
ment.' 

A written power of attt)mey authorizing an attorney in fact to sat- 
isfy mortgages, does not authorize him to execute a certificate of 
discharge without receiving payment of the debt.' 

A person who deals with an agent is bound to know the extent of 
his agency, and a mortgagor who pays interest or principal to any one 
but the mortgagee does so at his peril, and must be prepared to prove 
the authority of the agent to whom the payment is made. This is 
peculiarly the case when payments of principal are made before ma- 
turity to an attorney whose only authority is to receive interest.' 

§ 355. Bond should be produced and surrendered on payment 
in full.— When an obligor has discharged his bond, he is entitled .to 
have it given up and cancelled. Neither the obligee nor any other 
person is entitled to retain it for their convenience without his assent. 
A third person discharging a bond and mortgage, for his own safety, 
may demand possession of the bond and mortgage, and when the 
maker discharges them he is entitled to have the instruments cancelled.* 

Payment to a mortgagee after the mortgage has been assigned by 
him, will be good if the mortgagor have no notice of the assign- 
ment ; ' but if the payment be of the whole amount owing upon the 
mortgage, and the bond is not produced by the mortgagee, this is 
sufficient to put the mortgagor upon inquiry, and unexplained, to 
render him chargeable with knowledge of the fraud." 

If payment is made to the mortgagee of only a portion of the 
amount due, the production of the bond need not be required. The 
possession of the securities is an important circumstance where the 
payment is made to the agent or attorney ; but it is by no means con- 
trolHng when they are made to the mortgagee. In such a case a fail- 
ure to produce the bond and mortgage is insufficient as a matter of 
law to put the mortgagor upon inquiry.' 

Where a rnortgagee turned over to his wife a mortgage and note in 
satisfaction of claims held by her against him, and afterward formally 

' Heyman v. Beringer, i Abb. N. Cas. Y. 77 ; Harman v, Ellsworth, 64 N. Y. 

315. 159- 

* Hutchins, Adm'r, v. Clark, 64 Cal. " Brown v. Blydenburgh, 7 N. Y. (3 
228. Seld.) 141 ; Emery v. Gordon, 33 N. J. 

" Crane v, Evans, i N. Y, St. Repr. 216; Eq. 447. 

24 W. Dig. 163, aflS'g 2 How. N. S. 310. ' Van Keuren v. Corkins, 66 N. Y. 77, 

* Matter of Coster, 2 Johns. Ch. 503. 80, affi'g s. c. 4 Hun, 129 ; Foster v. 
'Van Keuren V. Corkins, 6 N. Y. Sup. Heals, 2i N. Y. 247; contra, Clark v. 

(T. & C.) 355 ; 4 Hun, 129, aiB'd 66 N. Igelstrom, 51 How. 407. 



§ 356.] PAYMENT ANB DISCHAEaE. 251 

assigned the same without delivery to a third person, the mortgagor 
who made payment to the wife was protected.' 

Possession of the bond may be necessary to a recovery upon the 
mortgage. Where a bond is recited in the mortgage, the non-pro- 
duction of the bond on the trial in an action to foreclose, is evidence 
of a discharge of the mortgage debt, and, if unexplained, is conclusive 
against plaiatiff's right to recover.' 

§ 356. Where payment should be made. — If no place is ap- 
pointed, either in the bond or mortgage, at which the principal or 
interest is to be paid, the debtor is bound to seek the creditor, to 
make the payment, not the creditor to seek the debtor to receive pay- 
ment ; no demand is necessary before bringing suit.' 

But this rule is subject to the exception, that if the creditor is out 
of the State when payment is to be made, the debtor is not obliged 
to follow him, and readiness to pay within the State will, in that case, 
be as effectual as actual payment to save a forfeiture. It may, per- 
haps, be that, although a creditor is absent from the State when a 
payment is due, if he has a house therein, where he resides, it is the 
duty of the debtor to tender the money there, or otherwise his obli- 
gation is not discharged. However this may be as a general rule, no 
such duty rests upon a mortgagor, and he is not obliged to part with 
his money to a third person without satisfactory evidence of his au- 
thority. If the mortgagee desires that the interest should be paid to 
any agent of his within the State, he should notify the mortgagor 
that such agent is entitled to receive it, and, if he leaves the State 
without doing so, the mortgagor is not obliged to tender the money 
at his residence, and failure to do so will not operate to make a mort- 
gage due under a default clause.' 

So, where a mortgagee removed from the State and went to Eu- 
rope, without informing the mortgagor who was authorized to receive 
the interest and instalments as they became due ; and the first infor- 
mation the mortgagor had of the authority of any person to act for 
the mortgagee, was the service of papers in an action to foreclose, 
whereupon he made a tender of the principal and interest to the at- 
torney, which was refused ; it was held that this was a sufficient ten- 
der, and that the lien of the mortgage was thereby extinguished.^ 

' Harscig v. Brown, 34 Mich. 503. ■• Hale v. Patton, 60 N. Y. 233 ; Task- 

' Bergen v. Urbahn, 83 N. Y. 49. er v. Bartlett, 5 Cush. 359. 

' Harris v. Mulock, 9 How. 402 ; Smith ' Houbie v. Volkening, 49 How. 

V. Smith, 25 Wend. 405. 169. 



252 MOETGAGES OP HEAL PBOPERTT. [§§ 357-359. 

§ 357. Where the discharge of a recorded mortgage is exe- 
cuted by a person other than the mortgagee, a subsequent in- 
cumbrancer is bound to inquire by what authority such person as- 
sumed to discharge it, and is chargeable with notice of all the facts 
which the reasonable prosecution of such inquiry would elicit. Thus, 
where a general guardian of infants, appointed by an order of the 
Court of Chancery, specially authorizing a release " upon receiving a 
bond and mortgage " upon other property, executed a release without 
receiving the bond and mortgage, it was held to be void even as to 
honafide purchasers.' 

§ 358. Remedy against person unlawfully cancelling lien. — In 
the absence of notice of the assignment of the mortgage, the mort- 
gagor may lawfully pay the money secured by it, to the mortgagee, 
or may negotiate with him for a release or cancellation of the hen.* 
But it does not follow that a mortgagee who has transferred the 
security may honestly deal with it. Such deahng, as between him 
and his assignee, is a fraud on his part, and he wiU hold the money 
received as a trustee, and will be hable for the damage occasioned by 
his release. The measure of damages in an action for unlawfully ex- 
ecuting a release is not Umited to the deficiency after an application 
of the remaining security, but is the value of the portion released, 
not exceeding the debt.' 

§ 359. Payment to an administrator of the mortgagee, duly ap- 
pointed after regular proof of death has been held to be valid, even 
as against the mortgagee himself, who was supposed to be dead when 
the letters of administration were issued ;* but if such letters were 
issued by a clerk in the surrogate's office without due judicial inquiry 
into the fact of death, they are void, and a person paying on the faith 
of them will not be protected against the living creditor.* To bind a 
living man to be dead by force of a judgment, all proceedings leading 
up to that judgment must be entirely regular. 



' Swartwout v. Curtis, 5 N. Y. (i Seld.) » Stebbins v. Howell, 4 Abb. Ct. of 

301 ; The Farmers' Loan & Trust Co. v. App. Dec. 297 ; Ferris v. Hendrickson, 

Walworth, i N. Y. (i Comst.) 433 ; Wat- i Edw. Ch. 132 ; Fox v. Wray, 56 Ind. 

erman v Webster, 33 Hun, 611. 423. 

* Van Keuren v. Corkins, 66 N. Y. 77, "Roderigas v. East River Savings 

affi'g 4 Hun, I2g ; 6 T. & C. 355 ; Heer- Inst'n, 63 N. Y. 460 ; 20 Am. R. 555. 

man v. Ellsworth, 64 N. Y. 159; Het- 'Roderigas v. East River Savings 

zell V. Barber, 6 Hun, 534 ; Wanzer v. Inst'n, 43 N. Y. Supr. (11 J. & S.) 217, 

Gary, 12 Hun, 403. affi'd 76 N. Y. 316 ; 32 Am. R. 309. 



§§ 360-361. J PAYMENT AND D18CHAEGE. 253 



APPLICATION OF PAYMENTS. 

§ 360. Application by the parties. — The payment by the mort- 
gagor to the mortgagee of a sum of money will not operate to reduce 
the amount due on the mortgage until it has been actually applied 
toward such reduction.' The right to make such application rests 
in the first instance with the person making the payment," and, if he 
makes no such application, it may be made by the mortgagee.^ 

A mortgagee is not bound to apply on the mortgage money re- 
ceived from the mortgagor, if he has other occasions to use or apply 
it ; nor would he have any right to apply it on the mortgage before 
its maturity.' 

This right of application continues in the mortgagor and mortgagee 
until some new right intervenes, but when a junior lien attaches on 
the property either by judgment or mortgage, the owner of such lien 
has the right to have any indebtedness which may exist from the 
mortgagee to the mortgagor applied in extinguishment of the mort- 
gage debt ; and this right of the junior incumbrancer is absolute, and 
in general is not subject to be defeated by the parties to the mort- 
gage, unless there are equities in favor of the mortgagee, which should 
operate to defeat the application of the rule.' 

§ 361. As between secured and unsecured claims. — If one debt 
be a mortgage debt and the other a simple account, it has been said 
that, in the absence of an application by either party or of evidence 
showing a contrary intention or establishing a different equity, the law 
will apply the money to the mortgage debt in preference, on the 
ground that it will be more for the interest of the debtor to have this 
debt discharged.' But this rule will not be adhered to in special 



' Simson v. Ingham, 2 Barn. & C. 65 ; * Richardson v. Coddington, 49 Mich.i. 

Gary v. Bancroft, 14 Pick. (Mass.) 315 ; ' Prouty v. Price, 50 Barb. 344 ; Rose- 

Doody V. Pierce, 9 Allen (Mass.) 141. velt v. Bank of Niagara, Hopk. 579, 

' N. Y. Ins. Co. V. Howard, 2 Sand, affi'd 9 Cow. 409. ' 

Ch. 183 ; Vick v. Smith, 83 N. C. 80; "Pattison v. Hall, 9 Cow. 747, 765 ; 

Bean v. Brown, 54 N. H. 395 ; Libby v. Dows v. Morewood, 10 Barb. 183 ; 

Hopkins, 104 U. S. 303. Prouty v. Eaton, 41 Barb. 409; Windsor 

* Campbell v. Vedder, i Abb. App. v. Kennedy, 52 Miss. 164 ; Neal v. AUi- 

Dec. 295; 3 Keyes, 174; Sheppard v. son, 50 Miss. 175; McLaughlin v. Green, 

Steele, 43 N. Y. 52, 60 ; Feldman v. 48 Miss. 205 ; Vick v. Smith, 83 N. C. 

Beier, 78 N. Y. 293 ; Cremer v. Higgin- 80 ; Johnson v. Anderson, 30 Ark. 745 ; 

son, I Mason, 338; Mayor, etc., of Alex- Forstall v. Blanchard, 12 La. An. i. 
andriav. Patten, 4 Cranch, 317. 



254 MOETGAGES OF EEAL PROPERTY. [§ 362. 

cases where equity requires that the application should be made on 
the secured debt.' 

Where a mortgage given by a principal to his factor to secure an 
existing debt, provided that it might be extended to future advances, 
and should remain as a continuing security up to a stipulated sum ; 
and advances were made by the factor to an amount exceeding the 
stipulated sum secured by the mortgage,, and consignments of goods 
were sent to the factor, the proceeds of which were credited to the 
principal in a general account, it was held that, in the absence of ap- 
plication by the parties, the credits were to be applied first to that 
part of the debt not secured by mortgage, and to the mortgage debt 
thereafter." 

§ 362. Where no specific application is made by the parties 
of payments upon a running account, they will be applied in equity 
to the first items of indebtedness, although the creditor may hold 
security for the payment of those items and none for the balance.' 

Where a mortgage is given to secure a balance of an account, and, 
thereafter, other transactions are had between the parties, the ques- 
tion as to whether the mortgage is paid depends upon the intention 
of the parties, and is to be disposed of as a question of fact upon all 
of the circumstances of the case.* 

A payment will be applied on a demand for which the person 
making it is personally bound in the first instance, rather than upon 
one for which he or his estate stand as surety." 

Money received by the mortgagee from the sale of a portion of the 
mortgaged estate," or as the price for a release of a portion of it,' must 
be applied by him to a reduction of the mortgage debt in preference 
to an unsecured claim. But if several notes are secured by the same 
mortgage, the mortgagee may apply the proceeds of a portion of the 
estate to such notes as he sees fit, as, for instance, to one unsecured 
by indorsement rather than to one which is thus secured.' 

Payments made on the mortgage are first to be applied to any inter- 
est which may be due, and the balance is to be credited on principal.' 



' Griswold v. Onondaga Co. Sav. Bk., * Snyder v. Robinson, 35 Ind. 311. 

93 N. Y. 301, 306. * Webster v. Singley, 53 Ala. 208 ; 25 

'Johnson's Appeal, 37 Penn. St. 268. Am. R. 609. 

'Truscott V. King, 6 N. Y. {2 Seld.) ' Hicks v. Bingham, 11 Mass. 300. 

147; Crocker v. Whitney, 71 N. Y. 161. ° Matthews v. Switzler, 46 Mo. 301. 

* Peck V. Minot^ 3. Abb. App. Dec. "Davis v. Fargo, Clarke Ch. 470; 

465 ; 4 Robt. 323. Chase v. Box, Freem. Ch. 261. 



§ 363. J DISCBCAEGE BY MEEGEE. 255 

Payment of a collateral Becurity is ordinarily a payment on the 
principal debt.' 

UISCHABGE BY MEBGEE. 

§ 363. When a mortgage will be discharged under the doc- 
trine of merger. — ^When the rights of the mortgagee and of the 
owner of the equity of redemption become vested in the same person, 
the lien is said to be merged in the title, and thereby to become de- 
Btroyed." On the same principle, where the person equitably bound 
to pay a mortgage and to relieve the land from its payment, becomes 
the owner by assignment of the mortgage debt, it becomes thereby 
satisfied and paid.' This is so, even if the assignment be taken in 
the name of a third person.* 

So, where a husband and wife executed a mortgage on the hus- 
band's land for his debt, and a mortgage on the vsdf e's land as collateral 
to it ; and the mortgagee bought the husband's equity of redemption 
in the land, it was held that the wife's land was discharged, the price 
allowed for the husband's land being greater than the mortgage debt.' 

So, also, a party holding a life estate in mortgaged premises is . 
bound to i^y the interest on the mortgage during the continuance of 
his estate, and if he becomes the assignee of the mortgage, the inter- 
est accruing while both titles are united in him cannot afterward be 
collected under the mortgage lien.' 

AgaiQ, where a senior mortgagee received a conveyance of the 
mortgaged premises and assumed the payment of a junior mortgage, 
his own mortgage was held to be merged and discharged, so that the 
junior mortgage took precedence.' 

When the owner of an equity of redemption pays off the mortgage 
and takes an assignment of it to himself, it becomes merged in the 
legal title and is extinguished, unless it appears that there is some 
beneficial interest in keeping it distinct." And where the mortgaged 

' Prouty V. Eaton, 41 Barb. 409. ' Wheelwright v. Depeyster, 4 Edw. 

' Gardner v. Astor, 3 Johns. Ch. 53 ; 232 ; Ward v. Price, 12 N. J. Eq. 

8 Am. Dec. 465 ; Collins v. Terry, 7 543. 

Johns. 278. * Sheldon v. Ferris, 45 Barb. 124. 

' Mickles v. Townsend, 18 N. Y. (4 ' Fowler v. Fay, 62 111. 375 ; Knee- 
Smith) 575 ; Russell v. Pistor, 7 N. Y. land v. Moore, 138 Mass. 198 ; Wads- 
(3 Seld.) 171 ; Putnam v. Collamore, 120 worth v. Williams, 100 Mass. 126 ; Carl- 
Mass. 454 ; Kilborn v. Robbins, 8 Allen, ton v. Jackson, 121 Mass. 592 ; McCabe 
466 ; Fairchild v. Lynch, 46 Supr. (14 J. v. Swap, 14 Allen, 188. 
& S.) I. " Gardner v. Astor, 3 Johns. Ch. 53 ; 

* Fitch V. Cotheal, 2 Sandf. Ch. 29. 8 Am. Dec. 465. 



256 MOETGAaES OF BEAL PEOPEETY. [§ 364. 

land and the mortgage both vest in the same person, the mortgage 
debt cannot thereafter be enforced against the mortgagor,' though 
the land be at that time of less value than the amount of the debt.^ 

Where a sherifE on selling land upon execution announced that the 
sale was made subject to a prior lien, and the bidders so understood 
it, and the holder of the Uen purchased, this was held to extinguish 
both his hen and his remedy on the note secured by it.' This is par- 
ticularly so if the holder of the junior lien after purchasing, mort- 
gages or conveys the property.* 

In this State an assignment of a mortgage may be compelled where 
payment is made by a person not equitably holden to make such pay- 
ment, and an assignment is necessary for his protection.^ If the 
person asking for such assignment is the mortgagor who has con- 
veyed the property, or there is some intervening incumbrance, or 
there is any reason why the appearance of merger should be avoided, the 
assignment may be required to be made to a person nominated by him." 

§ 364. The doctrine of merger as applied to mortgages is 
founded upon equitable principles, and is only apphed where equity 
requires that it should be. Whether a transaction shall be held in 
legal eHect to operate as a payment and discharge, which extinguishes 
the mortgage, or as an assignment, which preserves and keeps it on 
foot, does not so much depend upon the form of words used as upon 
the relation subsisting between the party advancing the money, and 
the party executing the transfer or release, and their relative duties. 
If the money is advanced by one whose duty it is, by contract or 
otherwise, to pay and cancel the mortgage, and relieve the mortgaged 
premises of the lien, a duty in the performance of which others have 
an interest, it is held to be a release and not an assignment, although 
in form it purports to be an assignment. When no such controlling 
obligation or duty exists, such an assignment is held to be an extin- 
guishment or assignment according to the intent of the parties, and 
their respective interests in the subject have a strong bearing on the 
question of intent.' 

' Lilly V. Palmer, 51 111. 331. 538 ; Madaris v. Edwards, 32 Kans. 

' Dickason v. Williams, 129 Mass. 284. 

182 ; Longfellow v. Moore, 102 III. 289. * Pardee v. Van Auken, 3 Barb. 534 ; 

' Biggins V. Brockman, 63 111. 316 ; Frost v. Yonkers Savings Bank, 70 N. 

Murphy v. Elliott, 6 Blackf. (Ind.) 482 ; Y. 553. 

Speer v. Whitfield, 10 N. J. Eq. 109. * Johnson v. Zink, 52 Barb. 396, affi'd 

* Thomas v. Simmons, 103 Ind. 51 N. Y. 333. 

'Shaw, C. J., in Brown v. Lapham, 



§ 365.] DISCHAKGE BY MEEGEE. 257 

The general rale is, that where the title to the land and the owner- 1 
ship of the mortgage debt become vested in the same person, the 
mortgage is thereby merged and extinguished ; but if the owner of 
the legal and the equitable titles has an interest in keeping those titles 
distinct, as, for instance, where there is an intermediate incumbrance,' 
he has a right so to keep them, and the mortgage will not be extin- 
guished.'' So, too, if the mortgage be assigned to the owner of the 
equity of redemption, in order to keep it alive with a view of a sub- 
sequent assignment, no merger will take place. The merger of a 
mortgage in the fee will not take place unless the intent of the par- 
ties, or the equitable rights of innocent third persons, require that it 
shall merge.' 

There can be no merger unless the title of the mortgaged estate 
has voluntarily been accepted by the mortgagee." 

§ 365. A merger will not be adjudged for the benefit of an 
intervening incumbrance, even where the mortgaged premises are 
conveyed by the mortgagor to the mortgagee for the express purpose 
of satisfying the mortgage debt, and avoiding the expenses of a fore- 
closure.' 

So, the assignee of a mortgage may, after acquiring the equity of 
redemption under a deed, executed by the mortgagor, but not by his 

3 Cush. 557 ; Franklin v. Hayward, 6i Boner, 38 Barb. 425 ; Day v. Mooney, 

How. 43 ; McGiven v. Wheelock, 7 4 Hun, 134 ; Judd v. Seekins, 62 N. Y. 

Barb. 22. 266 ; Rawiszer v. Hamilton, 51 How. 

' Mulford V. Peterson, 35 N. J. L. 127; 297 ; Smith v. Roberts, 91 N. Y. 470 ; 

Campbell v. Vedder, i Abb. App. Dec. Bostwick v. Frankfield, 74 N. Y. 207 ; 

295 ; Stantons v, Thompson, 49 N. H. Payne v. Wilson, 74 N. Y. 348 ; Bi^yar's 

272 ; Millspaugh v. McBride, 7 Paige, Appeal, iii Pa. St. 81 ; Moore v. Har- 

509 ; McKinsfry v. Merwin, 3 Johns, risburg Bank, 8 Watts, 138. 

Ch. 466 ; Besser v. Hawthorn, 3 Oreg. * Andrus v. Vreeland, 29 N. J. Eq. 

129. 394. 

^ Lord V. Lane, 8 Mete. 517. ^ Brooks v. Rice, 56 Cal. 428 ; Cohn 

' James v. Morey, 2 Cow. 246 ; Mills- v. Hoffman, 45 Ark. 376 ; Duffy v. Mc- 

paugh V. McBride, 7 Paige, 509 ; Skeel Guinness, 13 R. L 595 ; Lockwood v. 

V. Spraker, 8 Paige, 182 ; White v. Sturdevant, 6 Conn. 387 ; Bell v. Tenny, 

Knapp, 8 Paige, 173 ; James y. John- 29 Ohio St. 240 ; Mulford v. Peterson, 

son, 6 Johns. Ch. 417 ; Spencer v. Ay- 35 N. J. L. 127 ; Stantons v. Thompson, 

rault, 10 N. Y, (6 Seld.) 202 ; Day v. 49 N. H. 272 ; Besser v. Hawthorn, 3 

Mooney, 4 Hun, 134 ; Clift v. White, 12 Oreg. 129 ; Hunt v. Hunt, 14 Pick. 384 ; 

N. Y. (2 Kern.) 519 ; Mickles v. Town- Evans v. Kimball, i Allen (Mass.) 240 ; 

send, 18 N. Y. 582 ; Champney v. Coope, Lord v. Lane, 8 Mete. 517 ; Campbell v. 

32 N. Y. 543, rev'g s. c. 34 Barb. 539 ; Vedder, i Abb. App. Dec. 295 ; Mills- 

Bascom v. Smith, 34 N. Y. 320 ; Shel- paugh v. McBride, 7 Paige, 509 ; Mc- 

don V Edwards, 35 N. Y. 279 ; Angel v. Kinstry v. Merwin, 3 Johns. Ch. 466. 

17 



258 MOETGAGES OF REAL PEOPEETT. [§ 366. 

■wife, hold a mortgage executed by both as a part of his title to pro- 
tect himself against a claim of the wife to dower." 

Where an infant had an inchoate right of dower in an equity of 
redemption, and joined with her husband in conveying the land, and 
afterward claimed dower, it was held that the prior mortgage had not 
become merged by an assignment thereof to the owner of the equity, 
and that the plaintiff must take dower subject to the mortgage.^ And 
a mortgage of land attached since the making of the mortgage will 
not, on being assigned to a purchaser of the equity, merge in the 
equity so as to give the attaching creditor a preference.' 

When the union of the legal and equitable estates ia the same per- 
son has taken place, and there is no equitable right to be preserved 
by keeping them distinct, the mortgage will be extinguished, and 
cannot thereafter be revived by the mortgagor for the purpose of 
overturning a lien subsequent to the date of the mortgage ;' but, on 
the other hand, where the mortgaged premises are purchased by the 
mortgagee, and he cancels the mortgage as part of the purchase price, 
the mortgage will still be enforced in his favor as against the claims 
of judgment creditors who became such subsequent to the execution 
of the mortgage.' 

§ 366. Merger controlled by estoppel. — A person who has ac- 
quired both the mortgage Hen and the title, is, until he has made a 
disposition of the property, and until some other person has acquired 
an interest, at perfect liberty to consider the mortgage merged or 
not, as may be most beneficial." 

The owner of land who treats a mortgage on the same which has 
been transferred to him as a valid instrument, and transfers it as such, 
is estopped from insisting as against the assignee or any one claiming 
under him that, in his hands, it has merged or disappeared in the 
fee ;' and a purchaser from such owner after the recording of the as- 
signment by the latter, stands in no better position than his grantor.' 
On a like principle, a mortgagee who sells land upon which he holds 

' New Jersey Ins. Co. v. Meeker, 40 ' Warner v. Blakeman, 36 Barb. 501 ; 

N. J. L. 18 ; Snyder v. Snyder, 6 Mich. s. c. affi'd 4 Keyes, 487. 

470 ; Strong v. Converse, 90 Mass. (8 ' James v. Morey, 2 Cow. 246 ; Smith 

Allen) 557. V. Roberts, gi N. Y. 470, 476. 

'' De Lisle v. Herbs, 25 Hun, 485. ' Goodwin v. Keney, 47 Conn. 486. 

' Grover v; Thatcher, 70 Mass. (4 Gray) * Kellogg v. Ames, 41 N. Y. 259, rev'g 

526. 41 Barb. 218 ; Skeel v. Spraker, 8 Paige, 

^ Moore V. Hamilton, 48 Barb. 120. 182; Powell v. Smith, 30 Mich. 451; 

Graves v. Rogers, 59 N. H. 452. 



§ 367.] DISCHARGE BY MERGER. 259 

a mortgage, for a full consideration, and represents it to be clear of 
incumbrance, will be estopped from thereafter enforcing tbe mort- 
gage against tbe purchaser or his grantees.' 

§ 367. A merger can only occur where the entire property liable 
to pay the debt, and the whole debt, are both owned by the same 
person ; and it cannot exist where even a portion of the property so 
liable is owned by any other person than the owner of the mortgage.' 
Wlien a portion of the real estate upon which the mortgage is a lien 
is conveyed to the mortgagee, the question as to whether the mort- 
gage, or any part of it, is merged or satisjBed, will be one of intention. 
If the mortgagee on such purchase pays full value, without deduction 
for the mortgage or any part of it, and the real bargain is that the 
remainder of the estate in the hands of the grantor shall bear the 
whole debt, then the conveyance will operate as a release of the lien 
as to the property so conveyed, and the mortgage may still be en- 
forced as to the remainder.' But if the contract of sale imposes upon 
the grantee the obligation of paying the whole or any specified por- 
tion of the mortgage debt, equity will enforce such contract, and to 
the extent that justice may require, there wiU. be a merger. 

"Where the owner of a mortgage becomes devisee,* or heir,' as 
tenant in common of an undivided interest in the mortgaged land, 
the two estates do not become united so as to discharge any por- 
tion of the mortgage debt. So, where a tenant in common receives 
an assignment of a mortgage on the estate, he may hold and enforce 
it for the purpose of compelling contribution from his; co-tenant." 
Neither can a merger happen where the mortgagee acquires merely a 
defeasible title, as by becoming a purchaser at a sale under a judg- 
ment, the judgment creditor still retaining a right to redeem.' 

Where there was a bequest of the income of a mortgage to the 
widow of the testator, and of the principal, after her death, to the 
mortgagor, it was held that the debt was not extinguished, but was 
kept on foot for the purpose of paying the interest to the widow, and 
that she could maintain an action to foreclose the mortgage." 

' Bulkley v. Hope, i Kay & J. 482. ' Thebaud v. HoUister, 37 N. J. Eq. 

* Skeel V. Spraker, 8 Paige, 182. 402. 

5 Smith V. Roberts, 91 N. Y. 470, affi'g * Barker v. Flood, 103 Mass. 474 ; 

62 How. ig6 ; Clift v. White, 12 N. Y. King v. McVickar, 3 Sandf. Ch. 192 ; 

(2 Kern.) 526 ; Klock v. Cronkhite, i Casey v. Buttolph, 12 Barb. 637. 

Hill, 107. 'Southworth v. Scofield, 51 N. Y. 

" Clark V. Clark, 56 N. H. 105 ; Sah- 513. 

ler V. Signer, 44 Barb. 606. " Hancock v. Hancock, 22 N. Y. 568. 



260 MORTGAGES OP REAL PEOPEETY. [§§368-370. 

§ 368. No merger unless the title and debt are in the same 
person at the same time. — An assignee of the mortgage, by the 
assignment, becomes the mortgagee, and the original mortgagee there- 
after has no estate left in the land, and if he afterward acquires the 
interest left in the mortgagor, he does not thereby obtain an estate 
which merges that of the assignee.' 

So, where mortgaged real estate is sold by the mortgagor, subject 
to the mortgage, and subsequently the mortgage is acquired by the 
mortgagor's executors, the mortgage still remains a valid incumbrance, 
and can be enforced against the land in the hands of the mortgagor's 
grantee." 

§ 369. No merger when conveyance is set aside. — ^Where a 
mortgagor, holding the equity of redemption in trust, wrongfully 
conveyed the mortgaged premises to the mortgagee, with notice of 
the trust, giving him new security for his debt, and the cestui que 
trust set the conveyance aside, the mortgage was held not to merge 
in the conveyance, but to stand for the security of the mortgagee.' 
So, where a conveyance was made by a mortgagor to a mortgagee to 
defraud other creditors, which was set aside by a decree at their in- 
stance, the mortgage was not lost, and there was no merger.* 

§ 370. Purchaser cannot rely on merger shown by the public 
records. — The case of Purdy v. Hwntvngton (42 IST. T. 334), is 
interesting as illustrating the danger to purchasers of relying upon a 
merger of the mortgage interest with the title as it appears upon the 
records. In "that case, the defendant purchased the land from one 
who, from the records, appeared to be the owner both of the mort- 
gage and of the title, for value and without notice of any defect in the 
title, but it happened that the mortgage was owned by a third person 
under an unrecorded assignment, whose claims were held to be valid. 
It is clear that the decision was correct outside of the recording acts. 
The court held that the conveyance, with full covenants of title to the 
land, did not amount to an assignment of the mortgage, and that if it 
did, since the conveyance was recorded among the deeds, it did not 
operate to protect the purchaser as an assignment of the mortgage. 

So, in Miller v. Li/iidsey (19 Hun, 207), a mortgage was made 



1 Pratt V. Bank of Bennington, lo Vt. ' Corwin v. CoUett's Ex'rs, i6 Ohio St. 

293 ; 33 Am. Dec, 201. 289. 

^StiUmai) v. SliUman, 21 N..J. Eq, *• First National Bank v. Essex, 84 Ind. 

126. 144. 



§§371-373.] DISCHARGE BY MEEGEE. 261 

without any accompanyiag bond, and containing no covenant to pay 
the debt. The mortgage was recorded, and was sold and assigned by 
the mortgagee, but the assignment was not recorded. The grantee ot 
the property thereafter conveyed by warranty deed to plaintiff, who 
brought an action to have the mortgage declared cancelled. It was 
held on the authority of Purdy v. JSunlmigton {supra) that the 
mortgage was not merged or satisfied, but was in full force. The 
case was distinguished from one where there was a payment of the 
mortgage by the transfer of other real estate than that mortgaged, 
where it was held satisfied in all respects as if paid in cash.' 

§ 371. Preventing merger by clause in conveyance or assign- 
ment. — Where the equity of redemption is conveyed to the mort- 
gagee with an express written ^.greement between the parties that the 
deed shall not operate as a merger of the mortgage except at the 
election of the mortgagee, equity will preserve the estates distinct and 
give full force to the bargain.^ A merger may therefore be pre- 
vented by a clause in the conveyance to the mortgagee or in the assign- 
ment of the mortgage.' 

§ 372. No merger caused by marriage of mortgagor and 
mortgagee. — It was a general rule of the common law that where a 
man marries a woman to whom he is indebted, the debt was thereby re- 
leased. Thus, if the husband, being the obligor, took the obligee to 
wife, the bond was discharged at law, and the unity of persons dis- 
abled the wife from suing the husband. In this State, the Code and 
the acts of 1848 and 1849 have completely swept away the common- 
law rule which gave the husband rights in and control over the prop- 
erty of the wife, and now a wife may enforce a mortgage as against 
her husband." 

§ 373. When the taking of a higher security will extinguish 
an inferior one. — The rule that security of a higher nature extin- 
guishes inferior securities, wUl be found to apply to the state or con- 
dition of the debt itself, and means no more than'this, that when an 
account is settled by a note, a note changed to a bond, or a judgment 
taken upon either, the debt as to its origiaal or inferior condition is 
extinguished or swallowed up in the higher security ; and that all the 
memorandums or securities by which such inferior condition was 

' Wanzer v. Cary, I2 Hun, 403. * Bailey v. Richardson, 9 Hare, 734. 

^ Spencer v. Ayrault, 10 N. Y. (6 Seld.) ' Power v. Lester, 23 N. Y. 527 aifi'g 
202. ' s. c. V How. 413, 



262 MORTGAGES OF REAL PROPERTY. [§§374-375, 

evidenced lose their vitality. It has never been applied to the extin- 
guishment of distinct collateral securities, whether superior or inferior 
in degree. These are to be cancelled by satisfaction of the debt or 
voluntary surrender alone.' So, where a note secured by a mortgage 
on certain personal property was given, and subsequently a bond and 
warrant of attorney for the amount of the note was also given, upon 
which judgment was entered and execution was issued, it being 
agreed between the parties that judgment should be taken as col- 
lateral to the mortgage, this was held not to operate as an extinguish- 
ment or discharge of the mortgage lien.' 

§ 374. Debt remains though new obligation be given. — The 
same rule was applied where a mortgagee of chattels surrendered the 
original note, and took a new note and new mortgage on the same 
property, and it was held that he did not thereby extinguish the lien 
of the prior mortgage.' So, where the holder of a bond and mort- 
gage of real estate paid taxes and assessments on the mortgaged prem- 
ises, and took a fresh bond and mortgage on the same property for 
the amount of such payment from the grantee of the mortgagor, this 
was held not to extinguish his right to add the amount paid by him 
to the first mortgage and hold the mortgagor for the deficiency. The 
taking of the fresh bond and mortgage was not per se a discharge. 
It was not taking security of a higher nature for the same demand, 
BO as to extinguish the former, but the superadding of the personal 
liability of the owner of the equity of redemption was rendering the 
one collateral to the other, and not substitutional.* 

A mortgage given as collateral to a promissory note will not extin- 
guish it, although it contain a proviso against personal responsibility 
on the mortgage ;* and, on the same principle, a sealed mortgage of 
a chattel is nof an extinguishment of the debt,° 

§ 375. New mortgage without bond may discharge debt. — 
Whenever a mortgage under seal is taken as security for a pre-exist- 
ing debt not evidenced by a sealed instrument, the mortgage is, in a 
sense, a higher security, but the taking of it will not discharge the 
debtor from his original obligation, unless that be the intention of the 
parties. But if the original indebtedness is intended to be discharged, 

' Per Johnson, J., in Butler v. Miller, * Eagle Ins. Co. v. Pell, 2 Edw. 631 ; 

I N. Y. (i Comst.) 496, 500. Young v. Guy, 12 Hun, 325. 

^ Butler V. Miller, I N.Y.(i Comst.) 496. °Ainslie v. Wilson, 7 Cow. 662; 

^ Hill V. Beebe, 13 N. Y. (3 Kern.) Phelps v. Johnson, 8 Johns. 54. 

556 ; Gregory v. Thomas, 20 Wend. 17. 'Sterling v. Rogers, 25 Wend. 658. 



§§376-377.] DISCHARGE BY MEEGEK. 263 

and a mere mortgage is taken to secure the amount without any ex- 
press covenant to pay the same, and no bond or separate instrument 
is given to secure such payment, the mortgagee will be without any 
remedy against the mortgagor personally. The form of such a trans- 
action would not conclusively estabUsh an intent to release the mor<> 
gagor, but it would operate as evidence of such an intent.' 

A mechanic's lien on real property is waived by taking a mortgage 
on the same property for the amount of the lien.'' 

§ 376. New obligation or security may discharge if so agreed. 
— A promise to perform a promise which has already been made 
upon sufficient consideration, does not operate to release or extinguish 
the original obligation, and it is too well settled in this State to admit 
of a doubt, that the taking of a debtor's note does not merge or ex- 
tinguish the demand for which it is taken, even though it be expressly 
agreed to take the note in satisfaction.' A reason for this rule is 
found in the fact that a promise to release the original obligation 
would in such a case be without consideration. If it is agreed to take 
the note of a third person, or the indorsement of a third person in 
payment of the original debt, or if any advantage is gained by the 
creditor on his promise to release the primary obligation, there is no 
reason to believe that such an agreement would be without force. So, 
where the negotiable promissory notes of a mortgagor, bearing inter- 
est, were given and received as payment of an instalment of interest 
due upon the mortgage, this was held to be payment, though the 
notes were not paid.* 

§ 377. No merger in a void security.— A bond is a higher secu- 
rity than a note, because the law impresses upon it a more conclusive 
character, and a judgment is higher than either of them for the same 
reason. But, properly considered, neither the note, the bond, nor the 
record of judgment are delts. They are severally evidences of debt, 
and the debt itself exists as a legal proposition depending upon facts 
shown in whole or part by such evidence. If the creditor is armed 
with the better evidence, he is not allowed to use the poorer ; and 
this is almost the entire extent of the doctrine. If, therefore, the 
new security or evidence is defectively executed, so as not to operate 

' Hone V. Fisher, 2 Barb. Ch. 559. 19 Wend. 516 ; Frisbie v. Lamed, 21 Id. 

" TruUinger V. Kolford, 7 Oreg. 228; 450, 452; Hill v. Beebe, 13 N. Y. (3 

33 Am. R. 708. Kern ) 556 ; Richardson v. Wright, 58 Vt. 

» Cole V. Sackett, i Hill, 516 ; Waydell 367. 

V. Luer, 5 Id. 448 ; Hawley v. Foote, ■'Rice v. Dewey, 54 Barb. 455. 



264 MOETGAGES OF EEAL PEOPEETT. [§ 378. 

as evidence at all ;' or if it is the evidence of a contract which is 
Tisurious, and is for that reason void, it cannot displace or extinguish 
the original debt." Upon the same reasoning, although a mortgage is 
extinguished by the entry of a judgment of foreclosure and sale, it 
can only be extinguished by a valid judgment, and it is of fuU force 
when the judgment has been set aside as irregular.^. So, the cancel- 
lation of the judgment without payment of the mortgage, as, for 
example, by consent of the parties, would not impair the validity of 
the mortgage, but would only operate to destroy an evidence of the 
validity of the lien which the obtaining of the judgment had 
furnished. 

§ 378. Payment of collateral security in general cancels debt. 
— "While the giving of new or collateral security for a debt secured 
by a mortgage does not discharge the lien, the payment of such col- 
lateral 'security will always extinguish it, except in cases where the 
preservation of the lien is an equitable right of the person who makes 
the payment. Thus, where two persons executed a mortgage, and 
one of them afterward assumed the debt and gave other security for 
it, the payment of that security was held to satisfy the mortgage.* 
The proper test in all cases, is as to whether the person who paid the 
debt is the one who ought equitably to pay it. If he is only second- 
arily liable, then he is entitled to be subrogated to the rights of the 
mortgagee for his own indemnity.' 

If it shall appear by a matter of public record that a security taken 
as collateral to a mortgage debt has been paid, purchasers of the mort- 
gaged estate have a right to rely upon this as a satisfaction and dis- 
charge of the mortgage. So, where a judgment was recovered on a 
bond secured by a mortgage, and an execution was issued thereon, 
upon whfch other lands were sold, and the execution was returned 
satisfied, and the judgment cancelled, a purchaser for value who took 
title while these facts appeared upon the records, and who went into 
possession, was held to have acquired a perfect title, and it was de- 
termined to be inadmissible to inquire, as against him, as to whether 



' Burger v. Hughes, 5 Hun, 180. * Russell v. Pistor, 7 N. Y. (3 Seld.) 

^ Crippen V. Heermance, 9 Paige, 211; 171; Klock v. Cronkhite, i Hill, 107; 

Patterson v. Birdsall, 64 N. Y. 294. Tice v. Annin, 2 Johns. Ch. 125; Barnes 

* Stackpole v. Robbins, 47 Barb. 212 ; v. Mott, 64 N. Y. 402; Cole v. Malcolm, 
see Salmon v. Allen, 11 Hun, 29. 66 N. Y. 363. 

* McGiven v. Wheelock, 7 Barb. 22. 



§§379-380. J DISCHARGE BY MERGER. 265 

the proceedings in wliich the judgment had been obtained were' 
regular.' 

§ 379. Merger of mortgage in judgment of foreclosure. — A 

mortgage is merged in a judgment of foreclosure, in the sense that, 
after the rendition of such judgment, the creditor being furnished 
with a better and more efficacious security may not resort to the 
poorer and inferior one. But this rule cannot operate to benefit per- 
sons not bound by the judgment, and, as to them, the mortgage re- 
mains in full force.' So, a mortgage is not merged by the entry of a 
judgment on it and a sale made under such judgment to the mort- 
gagee, so as to benefit the holder of a second mortgage not made a 
party defendant to the foreclosure.' And, since a valid mortgage can 
only be merged in a valid judgment, a judgment setting aside a fore- 
closure and sale of mortgaged premises as illegal and fraudulent, is no 
bar to a subsequent foreclosure of the same mortgage, the mortgage 
itself and its lien being unaffected by the said judgment.* 

§ 380. Judgment does not merge cause of action as between 
defendants. — Where a principal and surety are Sued upon any obliga- 
tion securing a debt, as between the plaintiff and the defendants, the 
obligation becomes merged in the judgment ; but it is not necessarily 
merged as between the defendants. The merger is not so complete 
that the courts may not look behind the judgment to see upon what 
it is founded, for the purpose of protecting equitable rights connected 
with the original relations of the parties ; and the judgment, instead 
of being regarded strictly as a new debt, is sometimes held to be 
merely the old debt in a new form, so as to prevent a technical merger 
from working injustice.* The rule has been well formulated thus : 
" The merger of a cause of action has no effect upon the liabilities of 
the co-plaintiffs or the co-defendants between each other. Those 
liabilities are not in issue in the case, and, therefore, are not affected 
by the final determination of the action. In extinguishing a demand 
a judgment has no greater effect than mere payment. It leaves the 
liability of other parties to the defendant unaffected. A recovery 
upon a note against the maker and indorser does not so merge the 



' Driggs V. Simson, 3 N. Y. Sup. (T. ^ Parker v. Child, 25 N. J. Eq. 41. 

& C.) 786. ^ Stackpole v. Robbins, 47 Barb. 

' Franklin v. Hayward, 61 How. 43 ; 212. 

EvansGasLightCo.v. State ^j; re/. Reitz, 'Clark v. Rowling, 3 N. Y. (3 Comst.) 

73 Ind. 219 ; 38 Am. R. I2g. 216. 



266 MORTGAGES OF REAL PEOPEETT. [§ 381. 

note as to prevent the indorsers from paying the judgment, receiving 
the note, and maintaining an action upon it against the maker." ' 

Upon this principle, where a judgment of foreclosure was entered, 
and a sale had thereunder to a person owning the equity of redemp- 
tion, who was not equitably bound to pay the mortgage, but the sale 
was never carried out by the executing of a deed, for the reason that 
such defendant toot an assignment of the bond, mortgage, and decree, 
it was held that the judgment did not preclude such defendant, as 
assignee of the bond, from bringing an action upon it against the 
maker, who was both legally and equitably the person who, under the 
circumstances of the case, ought to pay it." 

Where a bond and mortgage were assigned as security for a debt, 
and the assignee brought an action to foreclose, claiming only the 
amount due him, and obtained a judgment, this was held not to merge 
the mortgage so as to prevent the mortgagee from paying the amount 
due to his assignee, and bringing a new action in his own behalf.' 

DISCHARGE BY EBLEASB OF PART OF THE SEOUEITT. 

§ 381. When a release of a portion of the security will cancel 
the mortgage pro tanto. — It is a principle of equity, that where 
mortgaged premises are subsequently sold to different purchasers in 
parcels, such parcels, upon a foreclosure of the mortgage, are to be 
sold in the inverse order of their alienation, according to the equita- 
ble rights of different purchasers, as between themselves, in reference 
to the payment of the mortgage, which is a lien upon the equity of 
redemption in all the parcels. And the same principle of equity is 
applicable to subsequent incumbrances, upon different portions of the 
mortgaged premises, either by mortgage or judgment.* It has also 
been determined that if the mortgagee, in such case, with full notice 
of the equitable rights of the subsequent purchasers or incumbrancers, 
as between themselves, releases a part of the mortgaged premises 
; which in equity is primarily liable for the payment of his debt, he 
1 will not be permitted to enforce the Ken of his mortgage against 
I other portions of the premises, vrithout first deducting the value of 
Jthat part of the premises which has been released by him.' 

' Freeman on Judgments, §227; Wads- * Stuyvesant v. Hall, 2 Barb. Ch. 151 ; 

worth V. Lyon, 93 N. Y. 201, 213 ; Kel- N. Y. Life Ins. & Trust Co. v. Milnor, 

sey V. Bradbury, 21 Barb. 531. i Barb. Ch. 353 ; Snyder v. Stafford, 11 

'Wadsworth v. Lyon, 93 N. Y. 201. Paige, 71. 

'O'Dougherty v. Remington Paper * Stuyvesant v. Hall, 2 Barb. Ch. 151 ; 

Co., 81 N. Y. 496. Guion v. Knapp, 6 Paige, 35 ; Howard 



§§ 382-383.] DISCHAEGE BY RELEASE. 267 

Upon tlie same principle, where payment of the mortgage debt is 
assumed by a purchaser, and the mortgagee, with notice of the facts, 
releases a part of the mortgaged land to the purchaser, and the re- 
maining part proves insufficient, the mortgagee cannot look to the 
mortgagor for payment of the deficiency caused by the release.' The 
mortgagor is entitled to credit for the value of the part released and 
is liable only for the balance.* 

If a mortgagee has diminished the security of a subsequent pur- 
chaser without his consent by releasing the mortgagor from his per- 
sonal liability, the land so purchased will be held to be fully dis- 
charged from the lien.' 

§ 382. The reason for this rule may be found in the fact that 
the owners of the property only secondarily liable for the payment 
of the mortgage debt stand as sureties, the property primarily liable 
being the principal fund. Among the equitable rights and privileges 
of a surety are the following : that the creditor shall first resort to 
the primary fund, where there are two, for the payment of his debt, 
so as to relieve as far as possible the property of the surety, and that 
the creditor shall do no act, without the express consent of the surety, 
to impair the benefit of a substitution to which the surety may be enti- 
tled. These are familiar rules in a court of equity," and it follows 
that if a creditor knowingly acts in disregard of these principles, he, 
and not the surety, should suffer the evil consequences. 

§ 383. The mortgagee is not prejudiced by release unless he 
has notice of the facts. — The right to have the lands which have 
been sold by the mortgagor charged in the inverse order of their 
alienation, is not strictly a legal, but an equitable right, and is gov- 
erned by those equitable principles upon which a court of equity 
protects the rights of sureties, or of those who are standing in the 



Ins, Co. V. Halsey, 4 Sandf. 565 ; s. c. v, Nicoll, 24 Minn. 221 ; Martin's Ap- 

affi'd 8 N. Y. (4 Seld.) 271; The Trustees peal, 97 Pa. St. 85. 

of Union College v. Wheeler, 61 N. Y. • SavingsBankv.Munson,47Conn.3qo. 

88 ; Hill V, Howell, 36 N.J. Eq. 25 ; ' Bank v. Thayer, 136 Mass. 459 ; 

Mount V. Potts, 23 N. J. Eq. 188 ; Loan Wing v. Hayford, 124 Mass. 249 ; Dra- 

Asso'n V. Beaghen, 37 N, J. Eq. 98 ; per v. Mann, 117 Mass. 439. 

Birnie v. Main, 29 Ark, 591 ; Stewart v. ' Coyler v. Davis, 20 Wis. 564. 

McMahan, 94 Ind. 389 ; Douglas v. * Wheelwright v. Depeyster, 4 Edw. 

Bishop, 27 Iowa, 214 ; Wolf v. Smith, 244 ; Cheesebrough v. Millard, i Johns. 

36 Iowa, 454 ; Hawke v, Snydaker, 86 Ch. 409 ; Stevens v. Cooper, i Johns. 

Ill, 197 ; Meacham v. Steele, 93 111. 135 ; Ch. 425 ; Hayes v. Ward, 4 Johns. Ch, 

Clark V. Fontain, 135 Mass. 464; Benton 123 ; Eddy v. Traver, 6 Paige, 521. 



268 MOETGAGES OF KEAL PROPEETT. [§ 384. 

situation of sureties. And the conscience of the party who holds the 
incumbrance is not affected, unless he is informed of the existence of 
the facts upon which this equitable right depends, or he has a suffi- 
cient notice of the probable existence of the right to make it his duty 
to inquire for the purpose of ascertaining whether such equitable 
right does in fact exist. If, therefore, the prior purchasers are so 
negligent as to leave the holder of an incumbrance to deal with the- 
mortgagor, or with a subsequent grantee of a portion of the premises, 
under the erroneous supposition that the lands conveyed to the prior 
purchasers still belong to the mortgagor, the mortgagee will not lose 
his lien by executing a release to one who happens to be a subsequent 
grantee. The principle that a creditor who has a hen on two funds 
may discharge the lien as to one without impairing his legal claim on 
the other, if he has no reason to suppose it will interfere with the 
equitable rights of any one, has been distinctly recognized.' To de- 
prive a creditor of his legal claim against the property of a person, 
standing in the situation of a surety, on the ground that such creditor 
has done an act which is inconsistent with the equitable rights of a 
surety, not only the fact of the suretyship must exist, but it must be 
known to the creditor at the time of the act complained of," or he 
must have either actual or constructive notice of it.' 

§ 384. What notice is sufficient. — The recording of a subsequent 
conveyance of, or mortgage on, parcels of the premises is not notice to 
the prior mortgagee, and if such mortgagee releases a portion of the 
premises without actual notice of such deed or mortgage, his lien 
upon the residue will not be impaired.* The recording of subsequent 
transfers or incumbrances may, however, be material, if it can be 
shown that the mortgagee had notice of facts and circumstances suffi- 
cient to put him on inquiry, for the public records furnish the infor- 



' Cheesebrough v. Millard, i Johns. McLean v. Lafayette Bank, 3 McLean, 

Ch 409. 588 ; Cooper v. Bigly, 13 Mich. 463 ; 

* Chancellor Walworth, in Guion v. Sharck v. Shriner, Pa. St. Nov. 20, 1882 ; 
Knapp, 6 Paige, 42, 43 ; Niemcewicz v. 27 Albi L. J. 336 ; Whittington v. Flint, 
Gahn, 3 Paige, 614 ; Patty v. Pease, 8 43 Ark. 504. 

Paige, 277. * Wheelwright v. Depeyster, 4 Edw. 

* Howard Ins. Co. v. Halsey, 8 N. Y. 233 ; Talmadge v. Wilgers, 4 Edw. 239, 
(4 Seld.) 271 ; Kendall v. Niebuhr, 58 n. ; Stuyvesant v. Hone, i Sandf. Ch. 
How. 156 : Mcllvain v. Assurance Co., 419, affi'd Stuyvesant v. Hall, 2 Barb. 
93 Pa. St. 30 ; Watts v. Burnett, 56 Ala. Ch. 151 ; Howard Ins. Co. v. Halsey, 8 
340 ; Blair v. Ward, 10 N. J. Eq. 119 ; N. Y. (4 Seld.) 271 ; Blair v. Ward, 10 
Vanorden v. Johnson, 14 N. J. Eq. 376; N. J. Eq. 119. 



§ 385.] DISCHAEGE BY RELEASE. 269 

mation whicli a mortgagee, desiring to act fairly, would naturally 
seek." If the mortgagee can be shown to have knowledge of the 
record of a conveyance, as if the release itself recites such record, he 
is put upon inquiry,, and is bound by the knowledge which an exam- 
ination of the records would furnish him.' 

It is enough to charge the mortgagee with notice if he has been 
informed, by letter or otherwise, of the names of junior purchasers 
from the mortgagor, and if their deeds are on record." 

And if the mortgagee has employed an attorney in the transaction, 
before the delivery of the release, and such attorney has acquired 
knowledge of the contents of the conveyances, the knowledge of the 
attorney will be treated as that of his cUent.* 

The actual occupancy of the purchasers from the mortgagor, by 
residence in dwellings erected on portions of the mortgaged premises, 
is constructive notice to the mortgagee, and he is chargeable with 
the consequence thereof, and cannot do anything in derogation of 
their rights or to their prejudice.' 

§ 385. The effect of a release by the mortgagee must depend 
upon the circumstances of the case. — If he has notice that by such 
an act he sacrifices the interest of a subsequent lien creditor, he will 
be bound to withhold his hand, or, if he proceeds, will be responsible 
for the loss incurred. He may have this knowledge in the very cre- 
ation of the mortgage. As if two or more severally seized of land 
join in a mortgage, they are all, in equali jure, entitled to contribu- 
tion among themselves ; and if the mortgagee should release the land 
of one from the mortgage, leaving the whole sum to be levied of the 
remaining lands, he would be doing an act of injustice of which he 
was fuUy cognizant. So, when the mortgage was originally by one, 
and a purchaser of part from the mortgagor intervenes, and before 
releasing, that fact is known to the mortgagee." 

' Guion V. Knapp, 6 Paige, 41, 42; 184; Dillon v. Anderson, 43 N. Y. 231, 

Howard Ins. Co. v. Halsey, 4 Sandf. 238 ; The Distilled Spirits, 11 Wall. 356 ; 

565 ; s. c. affi'd 8 N. Y. (4 Seld.) 271. Bank for Savings v. Frank, 56 How. 

^ Howard Ins. Co. v. Halsey, 8 N. Y. 403, 414. 

(4 Seld.) 271. 5 Trustees of Union College v. Wheel- 

' Hall V. Edwards, 43 Mich. 443 ; Dew- er, 61 N. Y. 88, 98 ; Brown v. Volken- 

ey V. IngersoU, 42 Mich. 17 ; James v. ing, 64 N. Y. 76 ; Dewey v. IngersoU, 42 

Brown, 11 Mich. 25 ; Howard Ins. Co. Mich. 17. 

V. Halsey, 8 N. Y. (4 Seld.) 271. « Per Sterrett, J., in Sharck v. Shri- 

* Kendall v. Niebuhr, 58 How. 156, ner, Pa. St. Nov. 20, 1882 ; 27 Alb. L. 

164 ; Bank of the U. S. v. Davis, 2 Hill, J. 336. 
451 ; Ingalls v. Morgan, 10 N, Y. 178, 



270 MORTGAGES OP EEAL PEOrEETY. [§§ 386-387. 

It is not always that a release of a part of mortgaged premises 
given with knowledge of a prior conveyance of another part that re- 
mains nnreleased, is held inequitable. It is not a technical discharge 
of that part ; nor is it an equitable release or discharge, unless upon 
the principles of natural equity and justice, it ought to operate against 
the mortgagee giving the release.' 

§ 386. Where two parcels of land owned by different persons 
are equitably bound pro rata for the mortgage debt, and the mort- 
gagee, with knowledge of the facts out of which this equity arises, 
releases one parcel, his security will be deemed diminished for the 
benefit of the other parcel, to the extent that the parcel released ought 
equitably to have contributed to its payment. So, where a mortgage 
covered two parcels of land and the equity of one was transferred 
to A, and the equity of the other to B ; and the mortgagee released 
A's parcel from the mortgage, it was held that B, on redeeming, could 
not compel A to contribute, but that he was entitled to have an abate- 
ment of such a proportion of the sum due on the mortgage as the 
value of A's parcel bore at the time of the execution of the mortgage, 
to the value of both parcels.^ And when, after the mortgaged prem- 
ises had passed to several devisees, and the mortgagee released, one 
devisee's portion, it was adjudged that the others were liable only for 
that share of the debt for which their portions would have been liable 
if no release had been made.' 

Where several parcels are justly bound for the payment of the debt, 
the mortgagee will incur no penalty for releasing one or more on re- 
ceiving their fair quota of the amount due, and the balance of the 
debt will remain a valid charge on the remainder.' 

So, the mortgagee may properly release portions of the mortgaged 
property in conformity with the terms of the mortgage itself, if that 
instrument contains provisions requiring releases to be given on cer- 
tain specified terms.' 

§ 387. It is only when the release is given in violation of 
equitable rights of third persons that it will operate to cancel or 



■Per Walworth, Ch., in Patty v. * Barney v. Myers, 28 Iowa, 472. 

Pease, 8 Paige, 277; Kendall v. Woodruff, ' Woodruff v. Stickle, 28 N. J. Eq. 549 ; 

87 N.V. I, 7 ; Walls V. Baird, 91 Ind. 429. Hawke v. Snydaker, 86 111. 197; Ken- 

^ Parkman v. Welch, 36 Mass. (19 dall v. Niebuhr, 58 How. 156, 165, affi'd 

Pick.) 231. sub nam. Kendall v. Woodruff, 87 N. 

' Gibson v. McCormick, 10 Gill & J. Y. i. 
(Md.) 65. 



§ 388.] DISCHAEGE BY RELEASE. 271 

reduce the mortgage. Between the parties a part may be released 
and the balance held,' and there are cases where equity would approve 
a release. So, where one of two tenants in common has paid his 
share of a joint mortgage, and the other has mortgaged his share 
a second time, the former is equitably entitled to a discharge ; and 
if it is given, this will not justify the later mortgagee to demand 
that the prior mortgage be postponed, or be held to be diminished in 
amount.'' 

If the release is the eqiiitable right of the person receiving it as 
against the portion of the property remaining, no deduction can be 
made from the mortgage debt because of it. So where, after the 
making of the mortgage, a portion was conveyed by the mortgagor 
for a full consideration and with warranty against the lien, the por- 
tion so conveyed, may justly be released by the mortgagee without 
impairing his lien against the balance remaining in the hands of the 
mortgagor and his subsequent grantees and mortgagees.^ 

So, where the mortgagee released in pursuance of an agreement con- 
temporaneous with the mortgage, and under which it was made, it 
was held that such release did not affect the hen of the mortgage as 
to the parcels not released." 

§ 388. In every case the mortgage will only be affected to 
the extent of the value of the property released ;' and the owners 
of property not released cannot be suffered to escape payment of the 
fair proportion of the mortgage debt, which they would equitably 
have been obligated to pay if the release had not been executed." 

It will be remembered that the release to a subsequent purchaser 
is not a technical discharge of the lands previously conveyed, from 
the hen of the incumbrance. So fax as the release relates to the orig- 
inal parties to the mortgage, each and every part of the mortgaged 
premises is bound for the payment of the whole debt, and a release 
of one portion does not in any manner affect the lien up«n the resi- 
due.' A release or discharge of one portion of the mortgaged prem- 



' Coutant V. Servoss, 3 Barb. 128. Koon, 30 N. Y. 428 ; Dunn v. Parsons, 

'' Southworth v. Parker, 41 Mich. 198. 40 Hun, 77 ; Loan Ass'n v. Beaghen, 27 

' Lyman v. Lyman, 32 Vt. 79. N. J. Eq, 98 ; Hill v. Howell, 36 N. J. 

"* Kendall v. Niebuhr, 58 How. 156, Eq. 25 ; Williams v. Wilson, 124 Mass. 

afB'd sub nam. Kendall v. Woodruff, 87 257. 

N. Y. I. ' Stevens v. Cooper, i Johns. Ch. 

6 Guion V. Knapp, 6 Paige, 35 ; Stuy- 425. 

vesant v. Hall, 2 Barb. Ch. 151 ; Frost v. ' Coutant v. Servoss, 3 Barb. 128. 



272 MORTGAGES OF REAL PROPERTY. [§§ 389-390. 

ises does not operate as an equitable release or discliarge of other 
portions, unless upon the principles of natural equity and justice it 
ought thus to operate against the party making the release to the sub- 
sequent grantee. So, where the entire value of the property released 
is credited upon the mortgage, no injury can come to any one, and 
no other property is affected.' 

If the mortgage was not an actual lien on the portion attempted to 
be released by reason of a lack of title in the mortgagor, no injury, 
could be done by the release, and the owners of the remaining prop- 
erty could derive no advantage from it.'' 

CHANGES IN THE FOEM OF THE DEBT. 

§ 389. Lien not commonly affected by changes in form of 
debt. — As a general rule the mere change in the form of the debt does 
not satisfy a mortgage given to secure it, unless it is intended so to 
operate. The lien of the debt attaches to the mortgaged property, 
and the lien can, as between the parties, only be destroyed by the 
payment or discharge of the debt, or by a release of the mortgage. 
Mere change of the form of the evidence of the debt in nowise afEects 
the lien. A renewal of the note, its reduction to a judgment, or other 
change not intended to operate as a discharge of the lien, still leaves 
it, as between the parties, in full vigor.' 

§ 390. Court will look at real nature of the transaction. — In 
cases of this kind the court will always look to the real nature of the 
transaction, and will not consider a mortgage discharged by the mere 
change, 'or even the destruction of another security for the same debt, 
if it was not the intention of the parties to destroy the lien of the 
mortgage. In the case of Hardwich v. Mynd (1 Anst. Ill), the 
court of Exchequer decided that the taking of a bond from the mort- 
gagor for the arrears of interest, which bond was never paid, was 
not a disAarge of the lien of the mortgage for such interest, although 
a receipt was actually indorsed upon the mortgage for the interest. 
So, in the case of Davis v. Mayna/rd (19 Mass. 242), where the mort- 



' Patty V. Pease, 8 Paige, 277. Ch. 65 ; Bank of Utica v. Finch, 3 Barb. 

' Taylor v. Short, 27 Iowa, 361 ; s. c. Ch. 293 ; Rogers v. The Traders' Ins. 

I Am. R. 280. Co., 6 Paige, 583 ; Reader v. Nay, 95 

^ Per Walker, J., in Flower V. Elwood, Ind. 164; see, also, mtte, §§ 208 to 

66 III. 438 ; Dunham v. Dey, 15 Johns. 212, Chap. VII. 
554 ; Brinckerhoff v. Lansing, 4 Johns. 



§ 391. J DISCHARGE BY EELEASE. 273 

gage was given to secure payment of a sum of money due on a prom, 
issory note, and the mortgagee afterward accepted a recognizance for 
the sum due, and left the mortgage with the justice before whom the 
recognizance was acknowledged, who delivered it to the mortgagor, 
the Supreme Court of Massachusetts held that the lien of the mort- 
gage was not thereby discharged. And in the case of Dwnhmrij v. 
Dey (15 Johns. 555), the Court of Errors in this State decided that 
where a mortgage is given to secure the payment of a promissory 
note, the subsequent renewal of the note is not to be considered an 
extinguishment of the original debt, so as to discharge the lien of the 
mortgage.' 

Where the mortgagor sold the land to a third person, and, by a 
contract of novation, the mortgagee delivered up the mortgage notes 
to the mortgagor and accepted the notes of the purchaser for the 
same indebtedness, the mortgage was held to stand as security for the 
new notes." 

Where an unauthorized alteration was made in a note secured by 
mortgage, it was held that this rendered the note void, but did not 
affect the validity of the debt for which the note had been given, and 
the mortgage lien was enforced.' 

§ 391. New obligations or securities. — It is extremely weU 
settled in this State that the taking of a debtor's note does not merge 
or extinguish the demand for which it is taken.* If the demand is 
in the form of a note and that is secured by a mortgage, the mortgage 
is an incident of the debt. But it is an incident of the debt itself 
and not of the note which is evidence of it. Accurately speaking, a 
note is not a debt at all, any more than, any other mere promise. 
Unless founded on a consideration, it is good for nothing between 
the original parties. Since taking a substituted note does not affect 
the debt, it cannot affect the security. "^ 

In the absence of a special agreement that a note of the debtor 
shall operate as fuU satisfaction for interest or principal on a bond 



I Per Walworth, Ch., in Rogers v. ^Gregory v. Thomas, 20 Wend. 17; 

The Traders' Ins. Co., 6 Paige, 583; Waydell v. Luer, 5 Hill, 448 ; Cole v. 

Pond V. Clark, 14 Conn. 334. Sackett, i Hill, 516. 

' Foster v. Paine, 63 Iowa, 85 ; Sloan ' Hill v. Beebe, 13 N. Y. 556, 562 ; 

V. Rice, 41 Iowa, 465; Packard v. King- Jagger Iron Co. v. Walker, 76 N. Y; 521, 

man, 11 Iowa, 219; Watkins v. Hill, 8 affi'g 43 N. Y. Supr. (11 J. & S.) 275; 

Pick. 522 ; Pomroy v. Rice, 16 Pick. 22. Hutchinson v. Swartsweller, 31 N. J. Eq. 

^Gillette v. Smith, 18 Hun, 10. 205; Lippold v. Held, 58 Mo. 213. 
18 



274 MOETaAGES OF REAL PEOPEETY. [§§392-393. 

secured by a mortgage, the mortgagee is not precluded from collect- 
ing the same.' The giving of a receipt in full or even the indorse- 
ment of the amount as a payment upon the bond, will not establish an 
agreement to take the note absolutely in payment of the original 
debt." 

But an indorsement of a receipt for an instalment of principal 
made upon a bond in consideration of a promissory note for the ex- 
press purpose of enabling the mortgagee to sell the note and mortgage 
to raise money, will be treated as a payment on account of the mort- 
gage and not as a mere change of security.^ 

A second mortgage for the same debt will not, in the absence of 
express agreement, be treated as a discharge of a prior mortgage, but 
as collateral to it." 

§ 392. Agreement to' take note in payment must be founded 
on new consideration. — 'So presumption vrill be indulged of an 
agreement to accept a new obligation or security in satisfaction of an 
old one. The presumption will always be that the new promise or 
security is a collateral to the old one. And, unless there be some 
new consideration moving between the parties, an agreement that a 
fresh promise shall be taken as full performance of a broken one, is 
void for the reason that it is without consideration. "When this 
reason does not apply, the rule no longer prevails. If any new or addi- 
tional security or other benefit is obtained by the creditor, or any detri- 
ment is sustained by the debtor, the agreement will be enforced. So, 
if notes bearing, interest are given for an instalment of interest due 
upon a mortgage, upon an agreement that they shall be in full pay- 
ment, they will be so treated." Or the notes of a third person given 
and received as payment will discharge the original debt." 

§ 393, Rule as to merger in securities of a higher nature. — If 
a bond is given for a note secured by mortgage, or if a judgment is 



' Cole V, Sackett, i Hill, 516 ; Hill v. » Fowler v. Bush, 38 Mass. (21 Pick.) 

Beebe, 13 N. Y. 556; Frisbie v. Larned, 230. 

21 Wend. 450, 452 ; Waydell v. Luer, 5 * Gregory v. Thomas, 20 Wend. 17 ; 

Hill, 448. " Hill V. Beebe, 13 N. Y. 556 ; Ponder v. 

^ Feldmai} v. Beier, 78 N. Y. 293; Jag- Ritzinger, 102 Ind. 571; Walters v. Wal- 

ger Iron Cp. v. Walker, 76 N. Y. 521, ters, 73 Ind. 425 ; Burns v. Thayer, loi 

affi'g 43 N. Y.. Supr. (11 J. & S.)275; Put- Mass. 426; Swift v. Kraemer, 13 Cal. 

nam v. Lewi?, 8 Johns. 389 ; Buswell v. 526 ; Packard v. Kingman, 11 Iowa, 219. 

Poineer, 37 N. Y. 312; Muldon v. Whit- * Rice v. Dewey, 54 Barb. 455. But 

lock, I Cow. 290 ; Megargel's Adm'r v. see Tylee v. Yates, 3 Barb. 222. 

Megargel, 105 Pa. St. 475. ° Walker v. Mebane, 90 N. C. 259. 



§§ 394-395.] DISCHARGE BY ESTOPPEL. 275 

obtained for the debt, the mortgage lien still remains until payment. 
The rule that a security of a higher nature extinguishes inferior se- 
curities, only apphes to the state or condition of the debt itself, and 
means no more than this, that when an account is settled by a note, a 
note changed for a bond, or a judgment taken upon either, the debt 
as to its original or inferior condition is extinguished or swallowed up 
in the higher security ; and that all the memorandums or securities 
by which such inferior condition was evidenced, lose their vitality. 
It has never been applied to the extinguishment of distinct collateral 
securities, whether superior or inferior in degree. These are to be 
cancelled by satisfaction of the debt or voluntary surrender alone.' 

mSCHAEGE BY EXTENDING TIME FOR PAYMENT OF MOETGAGE DEBT. 

§ 394. Where the property of one person is pledged to pay 
the debt of another, the owner of the property is the surety of the 
debtor. If, therefore, the mortgagee, without the consent of the 
owner of the property, makes a vahd and binding agreement 
giving time to the principal debtor, the mortgaged premises 
wiU thereby be released and discharged from the lien of the mort- 
gage." This rule apphes in favor of a wife, where her lands are 
pledged as security for the payment of her husband's debt.' 

In order to be available to the surety, the contract of extension 
must be binding and without his consent, and the mere taking of fur- 
ther obligations payable in the future, the right to proceed upon the 
collateral being expressly reserved, does not operate to discharge the 
mortgaged property." 

DISOHAUGE BY ESTOPPEL. 

§ 395. If the mortgagee should represent to a person intending 
to purchase the mortgaged premises that the mortgage had been paid, 
and such person should purchase, relying upon such statement, the 
mortgagee would not, on the plainest principles of justice, be allowed 
thereafter to enforce his claims. So the mortgagee, by holding out 
a third person as being authorized to act for him in making bargains 

' Per Johnson, J., in Butler v. Miller, ' The Bank of Albion v. Bums, 46 N. 

I N. Y. (i Comst.)496, overruling s. c. Y. 170; Smith v. Townsend, 25 N. Y. 

I Denio, 407. 479. 

'Smith V. Townsend, 25 N. Y. 479; * National Bank of Newburgh v. Biglter, 

Gahn v. Niemcewicz, 11 Wend. 312; 83 N. Y. 51, 66. See further as ta effect 

Niemcewicz v. Gahn, 3 Paige, 614. See of extending time, an/e, p. 147.. 
ante, Ch. VII., §§ 213 to 220. 



276 MOETGAaES OF REAL PEOPERTY. [§§ 396-397. 

in relation to the mortgage, may be bound by estoppel by the acts of 
his apparent agent, and the mortgage may be satisfied and discharged 
even without actual payment.' 

Where a mortgagee was present at an auction sale of the mortgaged 
land, and it was announced by the auctioneer that the title was per- 
fect and clear and unincumbered, and he failed to make any correc- 
tion of said announcement, and the purchaser bought under the im- 
pression that he was getting an unincumbered title, and took a deed, 
and paid his money, the mortgagee was held to be estopped from 
claiming under his mortgage, although the mortgage was recorded at 
the time of the sale.'' 

Where the grantee of a mortgagor, being about to sell the mort- 
gaged premises, procured the mortgagee to execute to the purchaser a 
bond conditioned that the said mortgagee would save the purchaser 
harmless from all costs and damages in consequence of any previous 
incumbrance upon the premises, it was held that the effect of this was 
to release the land from the incumbrance.' 

DISCHARGE BY TENDEE OF PAYMENT. 

§ 396. Rule at common lavr. — By the ancient common law, a 
mortgage was a grant of land defeasible on the condition subsequent 
of paying the money at the exact time specified. On failure to per- 
form that condition, the grant was absolute, and neither tender nor 
payment made afterward, would have the effect to revest the title.* 
The speqified time of payment was called the law day, because after 
default, the legal rights of the mortgagor were gone.' A legal ten- 
der at the day appointed by the mortgage for the payment of the 
money, divested the estate of the mortgagee, even though payment 
\were refused." 

§ 397. Rule in this State. — In this State the law is well settled 
;that a mortgage is a mere security or pledge of the land covered by 
it for tie money borrowed or owing, and referred to in it. It is al- 
ways permissible for the mortgagor to redeem by paying the amount 
, due at anytime before foreclosure; acceptance of payment of the 



'Curtiss V. Tripp, Clarke, 318. Grain v. McGoon, 86 111. 431 ; 29 Am. 

' Markhatp v, O'Connor, 52 Ga. 183. R. 37. 

' Proctor V. Thrall, 22 Vt. 262. 'Comstock, Ch. J., in Kortright v. 

* Rowell V. Mitchell, 68 Me. 2i ; Him- Cady, 21 N. Y. 355. 

ijpelmann v. Fitjspaitrick, 50 Cal. 650; « Kortright v. Cady, 21 N. Y. 343. 



§§ 398-399.J DISCHARGE BY TENDER. 277 

amount due will discharge the incumbrance on the land, and tender 
and refusal are equivalent to performance.' 

§ 398. A valid tender can be made at any time after the debt is 
due, and the tender of the amount due upon a mortgage, will dis- 
charge the lien." This is to be taken with the reservation that the 
debt or duty remains, and that the rejected tender at or after the 
stipulated time of payment or performance, has the effect only to dis- 
charge the party thus making it from all the contingent, consequen- 
tial, or accessory responsibilities and incidents of his contract, but 
without releasing his prior debt. The tender extinguifihes the hen 
and saves interest and costs, but the debt remains. The creditor by 
refusing to accept does not forfeit his right to the thing tendered, .but 
he does lose all collateral benefits or securities.' Since the tender and 
refusal do not extinguish the debt, but only defeat a particular rem- 
edy, it is not necessary that the tender should be kept good, or that 
the money should be brought into court.* 

§ 399. The tender must be kept good to sustain action for 
affirmative relief. But even if a sufficient tender is made out, no 
action for affirmative relief and the extinguishment of the mortgage 
can be maintained without keeping the tender good. A party com- 
ing into equity for affirmative relief must himself do equity, and 
this would require that he pay the debt secm-ed by the mortgage, and 
the costs and interest, at least up to the time of the tender. There 
can be no pretense of any equity in depriving the creditor of his 
security for his entire debt, by way of penalty for having declined 
to receive payment when offered. The most that can equitably be 
claimed would be to reheve the debtor from the payment of interest 
and costs subsequently accruing, and to entitle him to this relief he 

' Kemble v. Wallis, lo Wend. 374. Olmstead v. Tarsney, 69 Mo. 396. And 
' Kortright v. Cady, 21 N. Y. 343, rev'g in Indiana. McClellan v. Coffin, 93 Ind. 
s. c. sub nam. Kortright v. Blunt, 23 456. Contra, Matthews v. Lindsay, 20 
Barb. 490 ; Jackson v. Crafts, 18 Johns. Fla. 962 ; Grain v. McQoon, 86 111. 433. 
no; Edwards V. The Farmers' Fire Ins. ^ Kortright v. Cady, 21 N. Y. 343; 
& Loan Co., 21 Wend. 467; and s. c. Hunter v. Le Conte, 6 Cow. 728; Coit 
affi'd 26 Wend. 541 ; Arnot v. Post, 6 v. Houston, 3 Johns. Cas. 243. 
Hill, 65, rev'd on other grounds, 2 Den. * Kortright v. Cady, 21 N. Y. 343 ; 
344; Graham V. Linden, 50 N. Y. 547; Jackson v. Crafts, 18 Johns, no; Ed- 
Green V. Fry, 93 N. Y. 353. The same wards v. Farmers' Fire Ins. &Loan Co., 
rule in Michigan. Potts v. Plaisted, 30 21 Wend. 467 ; and s. c. affi'd 26 Wend. 
Mich. 149 ; Van Husan v. Kanoner, 13 541 ; Arnot v. Post, 6 Hill, 65, rev'd on 
Mich. 303. And also in Missouri. Thorn- other grounds, 2 Den. 344. 
ton V. Nat. Exchange Bank, 71 Mo. 221 ; 



278 MORTGAGES OF REAL PROPERTY. [§ 400. 

must have kept his tender good from the time it was made. If any 
further advantage is gained by a tender of the mortgage debt, it must 
rest on strict legal rather than on equitable principles. The circiun- 
stance that a security has become or is invalid in law, and could not 
be enforced, even in equity, does not entitle a party to come into a 
court of equity and have it decreed to be surrendered or extinguished 
without paying the amount equitably owing thereon. Even securities 
void for usury would not be cancelled by a court of equity without 
payment of the debt, with legal interest, until by statute it was other- 
wise provided.' 

I 400. What tender is sufficient. — The tender should be of the 
full amount due upon the mortgage, and it does not affect the ques- 
tion whether the person owning the legal title to the mortgage holds 
it in his own right or as trustee for some other person. In any 
event, to discharge the lien, the tender must be for the whole amount 
due upon the mortgage," and it must also be unconditional.' 

The holder of the mortgage is entitled to a reasonable time to ex- 
amine his papers and compute the amount due. He is not bound 
under penalty, and at the hazard of losing his entire debt, to carry at 
all times in his head the precise sum due on any particular day. The 
proof must be full, clear, and satisfactory that the tender was made 
in good faith, and was understood by the holder to be a present, ab- 
solute, and unconditional tender, intended to be in full payment and 
extinguishment of the mortgage, and not dependent upon his first 
executing a receipt or discharge, or any other condition or contin- 
gency. If the amount tendered be suflScient, the lien will be dis- 
charged whether it be accepted or not, and that without the execution 
of any paper.' 

A tender, with a demand for an assignment to the person paying, 
does not affect the lien.° 

Where the mortgagor said, in making a tender : " I will pay you 
this money if you will first transfer the mortgage and note to a third 
person," it was held that the mortgagee's rights were not affected by 
a refusal to accept." 

' Per Rapallo, J., in Tuthill v. Mor- Barb. 554 ; Cashman v. Martin, 50 How. 

ris, 81 N. Y. 94, 100. 337. 

* Graham v. Linden, 50 N. Y. 547. * Potts v. Plaisted, 30 Mich. 149. 

' Roosevelt v. Bull's Head Bank, 45 " Frost v. Yonkers Savings Bank, 70 

Barb. 579 ; Roosevelt v. The N. Y. & N. Y. 553 ; Day v. Strong, 29 Hun, 505. 

Harlem R.R. Co., 30 How. 230 ; s. c. 45 « Ferguson v. Wagner, 41 Ind. 450. 



§§ 401-405.] DISCHAEGE BY TENDER. S'l^Q 

After an action has been commenced on a mortgage, a tender of 
an amount to discliarge it should include costs.' 

§ 401. To whom tender may be made. — The tender may be 
made to any person who is authorized to receive it. So, although a 
mortgage may have been assigned, still, if no notice of such assignment 
has been given to the mortgagor, he may lawfully continue to treat 
with the mortgagee as the owner ;" and a tender to the mortgagee, 
even after the assignment, would be vahd, and would be as effectual 
to extinguish the hen of the mortgage as an actual payment.' 

§ 402. Mortgagee must accept a proper tender, without im- 
posing conditions. — If the tender be properly made, the mortgagee 
has no right to impose conditions upon which alone he will accept it ; 
as, for instance, that another debt be also paid, and a sale made after 
a vahd tender had been refused on such a pretense, would be void.* 

§ 403. Where a mortgage is given conditioned for the support 
of the mortgagee, or of the payment to him of a stipulated weekly 
or monthly allowance, the refusal of the mortgagee to accept the 
support or the payment of the specified sum, will operate to waive 
the condition, and to discharge the lien of the mortgage." 

§ 404; Mortgagee may rely on decisions of the highest courts. 
—In Hm-ris v. Jex ("66 Barb. 232 ; s. c. affi'd 55 IST. Y. 421), the defend- 
ant was a grantee of premises subject to certain mortgages executed 
prior to the legal tender act. After the decision of the Supreme 
Court of the United States holding that act void as to antecedent 
contracts,' and before the reversal of that decision,' the defendant 
tendered payment of the mortgages in legal tender notes, which was 
refused. It was claimed by the defendant that this operated to dis- 
charge the hen of the mortgages, but it was held, that the plaintiff 
had a right to rely on the decision of the highest court in the land, 
and that the tender being insufficient, according to the law of the 
land, as then declared, did not discharge the hen of the mortgage. 

§ 405. Tender must be clearly proved. — In view of the serious 
consequences resulting from the refusal of such a tender, the proof 



' Marshall v. Wing, 50 Me. 62. * Morrison v. Morrison, 4 Hun, 410 ; 

' Trustees of Unio^ College v. Wheel- Young v. Hunter, 6 N. Y. (2 Seld.) 204; 

er, 61 N. Y. 88. Holmes v. Holmes, 9 N. Y. (5 Seld.) 527; 

^ Hetzell V. Barber, 6 Hun, 534. Carman v. Pultz, 21 N. Y. (7 Smith) 547. 

* Burnet v. Denniston, 5 Johns. Ch. ^-Hepburn v. Griswold, 8 Wall. 605. 
35 ' Knox V. Lee, 12 Wall. 457. 



280 MOETGAG-ES OP EEAL PROPERTY. [§§406-407. 

should be very clear that it was fairly naade, and deliberately and in- 
tentionally refused by the mortgagee or some one duly authorized by 
him, and that sufficient opportunity was afforded to ascertain the 
amount due. At all events, it should appear that a sum was abso- 
lutely and unconditionally tendered sufficient to cover the whole 
amount due. The burden of that proof is on the party alleging the 
tender.' 

§ 406. Who may make a tender sufficient to discharge the 
lien. — It has been debated as to whether the tender which will dis- 
charge the lien of the mortgage may be made by any person other 
than one personally obligated for the payment of the mortgage debt. 
In Korbright v. Cady (21 IST. T. 343), the tender was made by a 
grantee of the mortgaged premises, and the tender was held to be 
equivalent to payment, so far as its effect upon the mortgage as a hen 
was concerned ; but it does not appear whether the grantee had or 
had not made the debt his own by assuming it. The reasoning of the 
court is, however, based largely upon the theory that the debt was 
that of the person who offered to pay it. In Harris v. Jex (66 
Barb. 232), the question was raised, and it was there held by the Gen- 
eral Term, in the first department, that a grantee who had received 
merely the equity of redemption, without obligating himself person- 
ally for the payment of the debt, could not discharge the incumbrance 
without actual payment. It was thought that, in such a case, the 
right of the grantee was limited to a privilege to redeem from the 
lien, and that such redemption could not be effected by a mere offer 
to redeem. It was argued that a tender could not be made by a mere 
stranger to a contract, so as to oblige the creditor to accept it, and it 
was determined to be unreasonable to allow the grantee to discharge 
the land, which was in his hands the fund upon which the debt was 
primarily chargeable, by any act which would continue the debt in 
fuU force against the mortgagor personally. This decision came be- 
fore the Court of Appeals for revifew, but that court expressly de- 
clined to pass upon the question, and the judgment was affirmed upon 
other grounds." In a later case the doctrine has been repudiated.^ 

§ 407. {Oontinued.) — ^In Dvngs v. Parshall (7 Hun, 522), a junior 
mortgagee who was a defendant in an action to foreclose the prior in cum- 



' Per Rapallo, J., in Tuthill v. Mor- 'Frost v. Yonkers Savings Bank, 70 
ris, 81 N. Y. 94, 99. N. Y. 553 ; Day v. Strong, 29 Hun, 

' Harris v. Jex, 55 N. Y. 421. 505. 



§ 408.] DISCHAEGE BT TENDEE. 281 

br-ance, made an offer after the entry of a judgment of foreclosure and 
sale, to pay all moneys due upon it, and requested an assignment ; this 
was refused, the money was placed in a bank for the owner of the 
judgment and there left, and aii action was commenced to compel the 
assignment asked for, with an injunction. The relief was granted, 
and it was said by Mullin, P. J., that " no distinction is perceived as 
to the effect of a tender, between that of a mortgagor to a mortgagee, 
and of a subsequent incumbrancer to the same party to redeem. In 
each case the effect is to discharge the lien on the mortgaged premises, 
and if tender discharges the lien in one case, it ought to have the 
same effect in the other." It will be noticed that the same effect was 
not given to the tender of the junior incumbrancer, for the tender was 
kept good, and there is no intimation in the case that it was intended 
to discharge the lien of the prior mortgage. Actual payment by the 
jjerson asking to redeem would not have had that effect. If a mort- 
gage debt is paid by a person who stands in the position of surety for 
it, either because of his collateral personal obligation, or because of his 
ownership of a subordinate interest in the property, the debt and lien 
are not thereby cancelled. They remain in full force, but they are 
thereafter equitably the property of the surety, and may be enforced 
by him without any formal assignment.' "When a surety redeems he 
does not satisfy the mortgage, but he becomes the equitable pm-chaser , 
of it, and an offer or tender to redeem is an offer to purchase. The 
rights of the surety are equitable, and it is hard to perceive any just 
principle upon which he would acquire any rights in the mortgage 
without keeping his tender good, a thing which the owner of the 
property would not be obliged to do. So, also, if such surety be re- 
leased, or if his junior lien be satisfied, and if his tender be not kept 
good, the owner of the estate upon which the mortgage is a charge, 
could not avail himself of a tender which was not made or intended 
for his benefit, and which, if accepted, would have operated only to 
transfer the lien and to change the ownership of the obligation. 

§ 408. {ContimAied.) — In Bloorwmgdale v. Bcumard (Y Hun, 459), 
and in Frost v. Yonkers Samings JBank (8 Hun, 26), the right of a 
junior incumbrancer to destroy any of the rights of a prior mortgagee, 
or even to delay his remedies by a mere offer to pay, coupled with a 
demand for an assignment, was distinctly denied, and it was held that 
the claim to an assignment depended upon the special circumstances 

' Ellsworth V. Lockwood, 42 N. Y. 89. 



282 MORTGAGES OP EBAL PEOPEETT. [§§ 409-410. 

of each case, and that it would not be granted except when it was 
necessary for the protection of equitable rights. 

§ 409. Junior lienor may not discharge by making a tender. — 
In Frost v. Yonkers Savings Bamk (TO N. T. 553), the Court of Ap- 
peals declared that the owner of the land subject to a mortgage, com- 
monly called the owner of the equity of redemption, has the right 
always to pay and satisfy a mortgage past due. And it matters not 
whether he is personally liable to pay the debt secured by the mort- 
gage. The right to discharge his land from the incumbrance is ia- 
cident to the ownership, and when he makes a lawful tender he 
destroys the lien.' But a junior incumbrancer may not occupy the 
same position as the owner of the land. There is certainly not always 
the same reason for allowing him to discharge the incumbrance, and, 
if he has such a right, it can only be exercised by an absolute tender 
of payment, which, if received, will discharge the debt and incum- 
brance. A tender with a demand for a transfer of a security, does 
not satisfy these requirements. Such a tender may give a party a 
footing in equity to compel the transfer desired if he. is otherwise 
entitled to it, but it does not operate to discharge the hen.' 

A party having no interest in the mortgaged premises or in the 
tender made, has no right to make a tender in his own behalf.' 

PEESUMPTION OF PATMENT FEOM LAPSE OF TIME. 

§ 410. When a mortgage is presumed to be discharged from 
lapse of time. — It is a well-settled rule, both at law and in equity, 
that a mortgage is not evidence of a subsisting title, if the mortgagee 
has not entered, and there has been no interest paid or demanded for 
twenty years. These facts authorize and require presumption of 
payment.' Such conclusive presumption does not arise at any earlier 
time than twenty years after the last payment of principal or inter- 
est ;' and the mortgagee will not lose his right by lapse of time where 
there has been a payment of interest, or a promise sufBcient to take 
the case out of the statutory limit, which promise as the law now 



' Citing Kortright v. Cady, 2i N. Y. •• Giles v. Bareraore, 5 Johns. Ch. 545 ; 

343 ; Stoddard v. Hart, 23 Id. 560 ; Dunham v. Minard, 4 Paige, 441 ; Borst 

Hartley v. Tatham, i Keyes, 222. v. Boyd, 3 Sandf. Ch. 501 ; 2 R. S. 301, 

'•' Frost V. Yonkers Savings Bank, 70 §48; Code of Civ. Pro. §381. 

N. Y. 553 ; Day v. Strong, 29 Hun, 505. ' Peck v. Mallams, 10 N. Y. (6 Seld.) 

' Maher v. Newbauer, 32 Cal. 168. 509 ; Boon v. Pierpont, 28 N. J. Eq. 7. 



§ 411. J DISCHAEGE BY LIMITATIOIiT. 283 

stands muBt be in writing/ or where the statute of limitations has 
been prevented from running by statutory disabilities. 

If an action is commenced to foreclose and a judgment is entered, 
the lien is still liable to be defeated by the same presumption of pay- 
ment founded upon lapse of time. If the mortgage stands alone 
without payment or proceedings to enforce it for twenty years, the 
presumption of payment accrues. If by virtue of foreclosure a new 
security has been taken, the same policy will, under the same circum- 
stances, raise the same presumption." Upon this principle it has 
been held that where there has been a foreclosure sale, not followed 
by a conveyance to the purchaser, or any recognition of the mortgage 
by the mortgage debtor, it will be presumed after the lapse of twenty 
years that the land had been redeemed from such sale.' 

Where a surety paying the debt of the principal becomes subro- 
gated to the rights of the creditor in a mortgage given by the prin- 
cipal debtor to secure notes, his action to foreclose the mortgage for 
his reimbursement is limited to six years, even when the mortgage 
contains an express covenant to pay the debt." 

§ 411. The statute controls. — The statute of limitations in this 
State differs essentially from the statute of James I. and from the 
statutes of limitation in force in most of the other States. Those 
statutes apply in their terms only to particular legal remedies, and 
hence courts of equity are said not to be bound by them except in 
cases of concurrent jurisdiction. In other cases courts of equity are 
said to act merely by analogy to the statutes and not in obedience to 
them.' But in this State " the distinction between actions at law and 
suits in equity and the forms of those actions and suits have been 
aboUshed," ° and the statute controls all actions whether heretofore 
denominated legal or equitable. The statute is peremptory and pro- 
vides as follows : " The following actions must be commenced within 
the following periods after the cause of action has accrued. "Within 
twenty years, an action upon a sealed instrument," etc' An action 
upon a mortgage to enforce its lien is as much barred by this statute 
as an action on a bond to recover a judgment for money damages, 
and no help can be given by the coxu-t to the plaintiff unless facts 

' Code oi Civ. Pro. § 395. * Arbogast v. Hays, 98 Ind. 26. 

5 Per Danforth, J., in Barnard v. ' Lord v. Morris, 18 Cal. 482. ^ 

Onderdonk, 98 N. Y. 158, 166. " Code of Civ. Pro. § 3339. 

' Reynolds v. Dishon, 3 Bradw. (111.) ' Code of Civ. Pro. §§ 380, 381. 
173- 



284 MORTGAGES OF REAL PROPERTY. [§§ 412-413. 

can be shown to bring his case within the exceptions which the stat- 
ute itself prescribes. In this respect the rule here is difiEerent from 
those States proceeding upon a different principle.' No question of 
mere presumption of payment can control, for presumptions may be 
rebutted, but the court must refuse to enforce the lien after twenty 
years whether payment has been made or not. 

§ 413. Delay in foreclosing for less than statutory period. — 
"While no conclusive presumption of payment arises in less than 
the time prescribed by the statute of limitations, the fact that the 
mortgagee has neglected to assert his rights for any considerable 
period will be of weight, with other circumstances, as an evidence 
that payment has been made. In an early case, where no steps had 
been taken to put the mortgage in force, nor had any demand been 
made under it for nineteen years previous to the trial, it was said 
that the jury would have been weU warranted to have presumed it 
"satisfied." 

§ 413. Payments made by mortgagor after granting mort- 
gaged estate. — The mortgage wiU continue to be valid so long as the 
debt which it secures is not barred by the statute, and anything which 
will prevent the statute from running against the debt, will also pre- 
vent the remedy on the security from being destroyed by lapse of time. 
This rule may operate curiously where the mortgaged estate has been 
acquired by some person other than the one who is personally ob- - 
ligated for the payment of the debt. Thus, in the case of Hughes v. 
Edwards (9 Wheat. 490), the Supreme Court of the United States 
held that purchasers from the mortgagor who had either actual notice 
of the mortgage at the time of their purchases, or had constructive 
notice by means of the registry, were bound by a previous acknowl- 
edgment of the person under whom they claimed, of the existence 
of the indebtedness within twenty years. In such a case the owner 
of the property is said to sit in the seat of his grantor, and he is 
bound by his previous recognition of the mortgage as a subsisting 
lien upon the premises within twenty years.' Not only wiH the 
grantee of the mortgaged premises be bound by the acts of the mort- 



' In Phibrook v. Clark, 77 Me. 176; for interest or enforcing the mortgage on 

32 Alb. L. J. 179, a mortgage was en- that account. 

forced after twenty years because the ' Jackson v. Pratt, 10 Johns. 381. 

mortgagor was the mother of the mort- ' Heyer v. Pruyn, 7 Paige, 465. 
gagee, and he had refrained from asking 



§ 414. J DI8CHAEGE BY LIMITATION. 285 

gagor or otlier person under whom he claims, anterior to the convey- 
ance, but he may also be bound by acts subsequent to the vesting of 
his rights ; and it has been held that a payment or new promise made 
by the mortgagor or other person liable to pay the debt, after the per- 
son so liable has transferred the property, will keep the debt and the 
security alive as against the estate.' 

A payment of interest by a tenant for Hfe will keep the mortgage 
alive as against the persons entitled to the mortgaged estate in re- 
mainder.' 

§414. Mortgage under seal not barred until twenty years, 
though debt be barred in six. — The statute of limitations does not 
affect the rights of parties, except as it takes away their remedies ;' it 
does not assume to declare a debt satisfied or paid after a certain space 
of time, but it only enacts that an action must be commenced within 
that time, or the courts will not thereafter enforce the demand. If, 
therefore, a simple contract debt, that is to say, one evidenced in such 
a way that the statute will prevent an action from being brought upon 
it after the expiration of six years, is secured by a mortgage under 
seal, the remedy upon the mortgage by foreclosure will remain for 
twenty years, though the remedy upon the personal liability of the 
debtor will be gone at the end of six. Thus, for example, a mortgage 
under seal to secure a promissory note, may be enforced after the debt 
has been barred by the statute, and at any time within twenty years.* 

' N. Y. Life Ins. & Trust Co. v. Covert, renewal of the mortgage secured thereby 

6 Abb. N. S. 154, rev'g s. c. 29 Barb. 435 ; only as between the original parties there- 

3 Abb. App. Dec. 250 ; Barrett v. Pren- to, and does not affect the rights of third 

tiss, 57 Vt. 297. But see contra, Pike parties to the property accruing after ex- 

V. Goodnow, 12 Allen (Mass.) 472 ; ecution of the mortgage, but prior to the 

Schmucker v. Sibert, 18 Kans. 104 ; 26 renewal and while the debt was barred. 

Am. R. 765. Where three persons ex- Cason v. Chambers, 62 Tex. 305. Regu- 

ecuted their joint and several mortgage lar payment of interest by grantee of 

on land to secure their joint and several equity of redemption does not prevent 

promissory note to the mortgagee, and the running of the statute of limitations 

one of them left the State, and the note against the liability of the grantor on the 

afterward became barred by the statute obligation. Trustees of Almshouse v. 

of limitations as to the two who remained Smith, 52 Conn. 434; Butler v. Price, 

in the State, it was held that the lien of 115 Mass. 578. 

the mortgage was also barred as to the ' Roddam v. Morley, i Des. & Jo. i. 

interest in the land, and that it could only ' Waltermire v. Westover, 14 N. Y. (4 

be enforced against the interest of the one Kern.) 16. 

as to whom the note was not barred. * Gillette v. Smith, 18 Hun, 10; Pratt 

Low V. Allen, 26 Cal. 143. A renewal v. Huggins, 29 Barb. 277 ; Heyer v. 

of the note after the same is barred by Pruyn, 7 Paige, 465 ; Borst v. Corey, 

the statute of limitations operates as a 15 N. Y. (i Smith) 510; Thayer v. Mann, 



286 MORTGAGES OP HEAL PROPERTY. [§§ 415-416. 

Upon the same principle, in an action to recover possession of a 
pledge, given to secure a debt against which the statute of limitations 
had run at the time of the commencement of the action, it was held 
that although the creditor had, from lapse of time, lost his remedy 
against the debtor personally, he had not lost his remedy against the 
pledge.' Pajnnent is one thing, a mere presumption of payment 
quite another. The test principle of the whole matter is simply this : 
the statute of limitations only bars the remedy, and if the creditor has 
any available security he may enforce it.' 

The presumption of payment from lapse of time is available as a 
shield, but not as a weapon of attack or as a ground for affirmative 
relief, and an action to cancel a mortgage cannot be sustained on the 
mere ground of lapse of time and without proof of actual payment.' 

State insolvent laws, hke statutes of limitation, afEect the remedies 
of creditors and do not operate to cancel debts, and for this reason 
the lien of a mortgage remains after the discharge of the mortgagor 
under a State statute.* 

§ 415. The rights of the mortgagor, like those of the mort- 
gagee, may also be barred by lapse of time, and a grant to the 
mortgagee may be inferred from continued possession and enjoyment 
by him for twenty years, under certain circumstances, but this presump- 
tion wiU be rebutted if the mortgagee commences proceedings to fore- 
close either by advertisement or by action, and »nch proceedings will 
revive the right of redemption.' 

§ 416. Possession by a mortgagee of the bond and mortgage 
is presumptive evidence of payment," especially when they are re- 
tained by him for many years, and are found among his papers at the 
time of his death.' 

igPick. 537; Baldwin v. Norton, 2 Conn, is outlawed. Earnshaw v. Stewart, 64 

163; Spears V. Hartley, 3 Esp. 81; Toplis Ind. 513. 

V. Baker, 2 Cox, 123 ; see Jackson v. ' Jones v. Merchants' Bank of Albany, 

Sackett, 7 Wend. 94 ; Powell v. Smith, 4 Robt. 221. 

30 Mich. 451; jEtna Life Ins. Co. v. 'See article 14 Alb. L. J. 209. 

Baker, 84 Ind. 301 ; Ballou v. Taylor, ' Allen v. Everly, 24 Ohio St. 97. 

14 R. I. 277 ; Thayer v. Mann, 19 Pick. * Heyer v. Pruyn, 7 Paige, 465, 469. 

535; Crooker v. Holmes, 55 Me. 195; 'Jackson v. Slater, 5 Wend. 295 ; Cal- 

20 Am. R. 687 ; Nichols v. Briggs, 18 S. kins v. Calkins, 3 Barb. 305 ; Calkins v. 

Car. 474; Capehart v. Dettrick, 91 N. C. Isbell, 20 N. Y. 147. 

344. And if the mortgage be given ° Braman v. Bingham, 26 N. Y. 483 ; 

to secure a note, a personal obligation Garlock v. Goertner, 7 Wend. 198. 

may be enforced on a covenant to pay 'Levy v. Merrill, 52 How. 360. 

contained in the mortgage after the note 



§§ 417-419.] DISCHAEGE OF EECOED. " 287 



DISCHAEGE OF MOETGAGES UPON THE EECOED. 

§ 417. Statute. — It is provided by statute that any mortgage that 
has been registered or recorded, or that may hereafter be recorded, 
shall be discharged upon the record thereof, by the officer in whose 
custody it shall be, whenever there shall be presented to him a certifi- 
cate signed by the mortgagee, his personal representatives or assigns, 
acknowledged or proved, and certified in proper form to entitle con- 
veyances to be recorded, specifying that such mortgage has been paid 
or otherwise satisfied and discharged. Every such certificate, and 
the proof or acknowledgment thereof, shall be recorded at full length, 
and a reference shall be made to the book and page containing such 
record, in the minute of the discharge of such mortgage, made by the 
officer upon the record thereof.' 

§ 418. Certificate of satisfaction is within the recording acts. — 
This is a simple mode of reconveying or releasing the land from the 
lien of the mortgage. The " satisfaction piece " is a " conveyance " 
under the recording act ; for by it an interest in real estate is aliened 
and the title of real estate is affected in law and in equity. It oper- 
ates to transfer back to the mortgagor the mortgage interest held by 
the mortgagee." 

While the record of a certificate of satisfaction of a mortgage,, exe- 
cuted by its apparent record owner, is a protection to a purchaser 
who pays value on the faith of it,' it is not so to one whose hen was 
acquired while the mortgage was in full force upon the record as a 
lien. As to such person, a certificate executed by the mortgagee after 
he has parted with the mortgage is of no value, though recorded.' 

§ 419. Other means of evidencing discharge. — The statutory 
method of releasing the lien of a mortgage is not the only permissible 
or legal means of accomplishing this result, and a quitclaim convey- 
ance from the mortgagee to the owner of the equity of redemption 
is commonly made when the object is to release a part of the mort- 
gaged premises.' A writing on the back of the mortgage may accom- 
plish the release,' and a bond of indemnity may operate in the same 

' I R. S. 761, §§ 28, 2g. Bacon v. Van Schoonhoven, 19 Hun, 

* Bacon V. Van Schoonhoven, 19 Hun, 158; Mason v. Beach, 55 Wis. 607;. 
158. Mabie v. Hatinger, 48 Mich. 341; Wood- 

' Ely V. Scofield, 35 Barb. 330 ; Holt bury v. Aikin, 13 111. 639. 

V. Baker, 58 N. H. 276. ' Waters v. Waters, 20 Iowa, 363 ; 

* Roberts v. Halstead, g Pa. St. 32. AUard v. Lane, 18 Me. 9. 
' Waters v. Waters, 20 Iowa, 363 ; 



288 M0ETGAGE8 OP REA.L PROPERTY. [§ 420. 

way.' A release in writing, but not under seal, of the land covered 
by the mortgage, though perhaps not good at law, is valid in equity ;' 
and even an unwritten agreement to satisfy a mortgage for a good 
consideration is a sufficient defense against a foreclosure of it.' 

A release under seal from the mortgagee to the mortgagor, whereby 
for value received and in consideration of one dollar he released the 
mortgagor from all indebtedness, " whether on book account, note, or 
any other way," was held to discharge a mortgage to secure a prom-' 
issory note.* But a release under seal of moneys due on a bond 
secured by a mortgage, " and also in full of all debts, demands, exe- 
cutions, and accounts of whatsoever nature," has been held insufficient 
to justify a discharge of the mortgage lien, there being other evidence 
that such was not the intention of the parties.' 

A receipt for the debt would, if uncontradicted, operate to extin- 
guish the mortgage, but would be open to explanation. 

A quitclaim deed by a mortgagee of the premises covered by his 
mortgage may operate as an assignment, or as a release, according as 
the grantee may elect and equity may require." 

§ 420. The record of discharge is no more valuable than the 
certificate of satisfaction, and a worthless certificate does not gain 
anything of vahdity by being engrossed by a recording clerk and 
noted upon the margin of the instrument.' Thus a forgery is a nul- 
lity at all times ; and a certificate of discharge, executed by a person 
not duly authorized to execute it, is no protection even for a iona^fide 
purchaser, though it be recorded and duly certified by the recording 
officer.' 

In the absence of proof of any act on the mortgagee's part mis- 
leading the purchaser, the fact that the mortgage has been erroneously 
cancelled of record by the register is no defense to its foreclosure, 
even if the purchaser has paid full value for the premises in good 
faith and relying on the record." 



' Archambau v. Green, lo Minn. 520. ' Harris v. Cook, 28 N. J. Eq. 345 ; 

' Headly v. Gormdry, 41 Barb. 279 ; Mechanics' Building Association v. Fer- 

Wallis V. Long, 16 Ala. 738. guson, 29 La. Ann. 548. 

' Griswold v. Griswold, 7 Lans. 72, ° Swarthout v. Curtis, 5 N. Y. (i Seld.) 

affi'd 52 N. Y. 631. 301 ; Farmers' Loan & Trust Co. v. Wal- 

■• Van Bokkelen v. Taylor, 62 N. Y. worth, i N. Y. (i Comst.) 433. 

105. ' Brown v. Henry, 106 Penna. St. 262; 

' Jackson v. Stackhouse, i Cow. 122. Lancaster v. Smith, 17 P. F. Smith (Pa.) 

' Thayer v. McGee, 20 Mich. 195. 427. 



§§ 421-422. J DISCHARGE OF KECOKD. 289 

§ 421. Who may execute certificate of satisfaction. — Tliis 
statute does not mean that all of the mortgagees, or their personal 
representatives, must execute and acknowledge the certificate of satis- 
faction in order to authorize the officer in whose custody the record 
of the mortgage shall be, to record it, and discharge the mortgage on 
the record. Such certificate is sufficient if executed and acknowl- 
edged by any person or persons authorized to receive payment of the 
mortgage ;, as, for instance, a mortgage may be cancelled by any one 
of the executors of a mortgagee.' 

If a mortgage is discharged upon the record by a person who ap- 
pears by the record to be the owner of it, even though it has actually 
been assigned, it will operate to cancel the mortgage as against sub- 
sequent purchasers and mortgagees in good faith and without notice, 
but as to all other persons the validity of the mortgage will not be 
impaired." 

Where a discharge of a recorded mortgage is executed by a person 
other than the mortgagee, as by a guardian of an infant, a subsequent 
purchaser is bound to inquire by what authority such person assumed 
to discharge it, and he is chargeable with notice of all the facts which 
the reasonable prosecution of such inquiry would ehcit. Where, 
therefore, a guardian for infants was directed to give a bond previous 
to satisfying a mortgage, and he failed to give the bond and executed 
the certificate of satisfaction which was recorded, it was held that 
such discharge did not protect subsequent hona fide incumbrancers 
against the claims of the infants by virtue of their mortgage.^ 

§ 423. Discharge by officer of limited powers. — Where moneys 
deposited with a special officer, as a clerk of the Court of Chancery, 
have been invested under special directions of the court, in a mort- 
gage payable to such officer in his official capacity, such clerk has no 
power to discharge the mortgage without the order of the court ; and 
if he do execute such a discharge vnthout actual payment, and with- 
out the order of the court, it is void even as against lona fide pur- 
chasers of the property.* 



' The People v. Keyset, 28 N. Y. 226 ; gages to the People of this State may be 

Stuyvesant v. Hall, 2 Barb. Ch. 151. discharged of record upon the treasurer's 

2 Ely V. Scofield, 35 BarJ). 330. receipt, countersigned by the comptrol- 

= Swarthoutv.Curtis,5N.Y.(iSeld.)30i. ler, setting forth that the whole sura due 

* Farmers' Loan & Trust Co. v. Wal- on such mortgage has been paid, i R. S. 

worth, I N. y. (i Corast.) 433. Mort- 175, §§ 36, 37. 

19 



290 MORTGAGES OF EEAL PKOPEETY". [§§423-425. 

§ 423. Right of person paying mortgage to certificate of sat- 
isfaction. — It is a matter of serious importance to the owner of mort- 
gaged premises that upon payment of the mortgage debt he should 
be furnished with a document which will cancel the apparent lien of 
record. He is, in equity and fairness, entitled to a proper voucher. 
But there is no summary way in which a delivery of a certificate of 
satisfaction can be enforced. The remedy of the mortgagor, in case 
a certificate of satisfaction is refused, is to pay the debt in the sight 
of witnesses, and then to bring an action to cancel the mortgage and 
compel the execution of a satisfaction piece.' 

Where the mortgage is in the form of an absolute deed, with a 
parol defeasance, the grantee may, on payment of the debt, and in an 
action brought for that purpose, be required to execute a reconveyance." 

A person demanding a certificate of satisfaction of a mortgage, 
should prepare the instrument and present it to the mortgagee, at the 
same time offering to pay the expenses of execution." 

§ 424. Actions to discharge mortgages. — It is in the power of 
a court of equity either to cancel a mortgage shown to be discharged 
or paid, or to revive a mortgage where the cancellation of it has been 
obtained by fraud and the equitable rights of the parties require such 
relief." An action to cancel a mortgage may also be brought by the 
mortgagor if it be usurious, or if the parties differ as to the amount 
owing upon it, and the plaintiff may in one action ask to have a mort- 
gage discharged because it is paid, and also to be allowed to redeem 
if it be not fully paid." 

A county court has jurisdiction of an action to compel the satisfac- 
tion of a mortgage, and for damages for a wrongful refusal of the 
rnortgagee to execute a certificate of satisfaction.' 

§ 435. Who may bring action to discharge mortgage. — An 

action to cancel a mortgage or other lien cannot be maintained by a 
person who has no interest in or lien upon the land affected by it. 
Even though the plaintiff has warranted the title against the lien,' or 



1 Beach v. Cooke, 28 N. Y. 508; Barnes '' Pettengill v. Mather, 16 Abb. 399. 

V. Camack, i Barb. 392 ; Sutherland v. * Barnes v. Camack, i Barb. 392. 

Rose, 47 Barb. 144 ; Beecher v. Acker- ' Beach v. Cooke, 28 N. Y. 508 ; Suth- 

man, i Abb. N. S. 141 ; Sherwood v. erland v. Rose, 47 Barb. 144 ; Beecher 

Wilson, 2 Sweeny, 684 ; Verges v. Gibo- v. Ackerman, i Abb. N. S. 141. 

ney, 47 Mo. 171. ' Mosher v. Campbell, 30 Hun, 230. 

" Sherwood v. Wilson, 2 Sweeny, 684 ; ' Bissell v. Kellogg, 60 Barb. 617. 
.Kenton v. Vandergrift, 42 Pa. St. 339. 



§ 426. J DISCHAKaE OF EECOED. 291 

has conveyed the land with a covenant with his grantee to procure 
the lien to be discharged/ this wiU not furnish a proper basis for 
the action. 

But where a plaintiff had conveyed the lands covered by a mort- 
gage, and the purchaser had withheld an amount of the purchase 
money sufficient to pay the amount unpaid upon the mortgage, and 
the same was deposited in a trust company to abide the event of a 
proceeding to procure a satisfaction of the mortgage and to pay what- 
ever might be found due thereon, the action was held properly 
brought by him." 

The inchoate title of a purchaser of lands on execution after the 
expiration of the time for redemption by the judgment debtor, is such 
an interest and title as entitles the purchaser to maintain an action for 
the cancellation of instruments or incumbrances which, within the 
doctrine of courts of equity, are clouds upon the title." And, in re- 
spect to paid judgments and mortgages, it is well settled that the 
court may grant relief by compelKng their satisfaction of record 
where they are continued as apparent liens for inequitable purposes.' 

§ 426. Action for damages for refusal to execute discharge. — 

The statutes of many of the States require a mortgagee, on full pay- 
ment being made or tendered to him, to furnish a proper voucher or 
release sufficient to remove the apparent lien from the record under 
a specific penalty to be recovered by action. No such remedy can be 
had in this State, but an equitable action will lie to compel satisfac- 
tion and for actual damages sustained by an unreasonable refusal to 
execute a proper certificate of satisfaction.^ 

Even where a statutory penalty is attached to a refusal to execute a 
proper discharge, this penalty will not be enforced where the mort- 
gagee honestly believes that his claim is not satisfied and refuses on 
that ground.' 

It has been said that damages can be recovered for a wrongful re- 
fusal to execute a proper document to remove the apparent lien of a 
mortgage from the record ; but it is by no means well established 
what the proper measure of damages would be in such an action. 



' Townsend v. Goelet, ii Abb. Pr. 187. erty, 81 N. Y. 474 ; i Story's Eq. § 703 ; 

' Levy V. Merrill, 14 Hun, 145. Radcliff v. Rowley, 2 Barb. Ch. 23 ; 

' Remington Paper Co. v. O'Dough- Shaw v. Dwight, 27 N. Y. 244. 
erty, 81 N. Y. 474. ' Mosher v. Campbell, 30 Hun, 230. 

■• Remington Paper Co. v. O'Dough- * Huxford v. Eslow, 53 Mich. 179. 



292 MORTGAGES OF REAL PROPEETT. [§§ 427-428. 

Such damages only can be recovered as are tlie necessary and legiti- 
mate results of the wrongful refusal, and a judgment rendered against 
a mortgagee, whose mortgage was in the form of an absolute convey- 
ance with a parol defeasance, for the difference between the amount 
of the loans and the interest thereon from the time of making the 
same and the time when the defendant refused to reeonvey, and the 
market value of the land at the latter time, and the counsel fees in- 
■curred by the plaintiff in an equity suit brought against the defendant 
and others, was reversed as altogether unauthorized.' It was also said 
to be doubtful as to whether any action for damages could be sus- 
tained after the plaintiff had pursued his equitable remedy to judg- 
ment." 

§ 427. Effect of discharging lien upon the debt. — The execut- 
ing of a certificate of satisfaction and the discharge of the mortgage 
upon the record does not, of itself, discharge the debt, but only the 
security." And a release of part of the mortgaged premises does not, 
in the absence of equities of third persons, impair the debt or reduce 
the amount of the lien on the other property." 

A release made by the holder of a first mortgage, solely for the 
purpose of giving priority to a second mortgage, will not prevent the 
foreclosure of the mortgage as against the mortgagor.' 

§ 438. Special proceedings to discharge mortgages of record 
in certain cases. — It will sometimes happen that a mortgage will be 
allowed to remain uncancelled upon the record, though the debt which 
it has been made to secure has been paid. In order to provide for 
such cases, it has been enacted that the mortgagor named in, or any 
person having any interest in any lands described in any mortgage of 
real estate in this State, which is recorded in this State, and which, 
from the lapse of time, is presTimed to be paid, may present his peti- 
tion to the courts mentioned in this act, asking that such mortgage 
may be discharged of record. Such petition shall be verified ; it shall 
describe the mortgage, and when and where recorded, and shall allege 
that such mortgage is paid ; that the mortgagee has, or if there be more 
than one mortgagee, that all of them have been dead for more than 
five years ; or if such mortgagee be a corporation or association, that 
such corporation or association has ceased to exist and do business as 

' Marvin v. Prentice, 94 N. Y. 295. * Edgington, Adm'r, v. Hefner, 81 111. 

'Id. 341- 

' Sherwood v. Dunbar, 6 Cal. 53. ' Wood v. Wood, 61 Iowa, 256. 



§ 429.J DISCHAEGE OF RECOED. 293 

Buch for more than five years ; the time and place of his or their death, 
and place of residence at the time of his or their death ; whether or 
not letters testamentary or of administration have been taken out, or, 
if a corporation or association, its last place of business ; the names 
and places of residence, as far forth as the same can be ascertained, of 
the heirs of such mortgagee or mortgagees; or if such mortgagee be 
a corporation or association, then the names of one or more of the 
receivers, if any were appointed, or of the person who has the care of 
closing up the business of such corporation or association ; and that 
such mortgage has not been assigned or transferred, and if such mort- 
gage has been assigned, state to whom, and the facts in regard to the 
same. Provided, however, that if such mortgage has been duly as- 
signed by indorsement thereon or otherwise, but not acknowledged 
so as to entitle the same to be recorded, then it shall be competent for 
the court at any time within the period aforesaid, upon proof that all 
the matters hereinbefore required to be stated in said petition are 
true, and that the assignee of such mortgage, if living, or his personal 
representative, if dead, has been paid the amount due thereon, to make 
an order that such mortgage be discharged of record. 

§ 429. Such petition may be presented to the Supreme Court 

in the county where the mortgaged premises are situate, or when 
situate in the city of New York, to the Superior Court thereof, or 
when situate in the city of BufEalo, to the Superior Court thereof. 
The court, upon the presentation of such petition, shall make an order 
requiring all persons interested to show cause at a certain time and 
place, why such mortgage should not be discharged of record. The 
names of the mortgagor, mortgagee, and assignee, if any, the date of 
the mortgage and where recorded, and the town or city in which the 
mortgaged premises are situate, shall be specified in the order. The 
order shall be published in such newspaper or newspapers, and for 
such time as the court shall direct. The court may also direct the 
order to be personally served upon such persons as it shall designate. 
The court may issue commissions to take the testimony of witnesses, 
and may refer it to a referee to take and report proofs of the facts 
stated in the petition. The certificate of the proper surrogate or sur- 
rogates, whether or not letters testamentary or of administration have 
been issued, shall be evidence of the fact ; and the certificate of the 
clerk of the county or counties in which the mortgaged premises have 
been situate since the date of said mortgage, shall be evidence of the 



294 MORTGAGES OF REAL PROPERTY. [§§430-431. 

assignment of such mortgage, or of the notice of the pendency of an 
action to foreclose such mortgage, and of such other matters as may 
be therein stated ; or if a notice of the pendency of an action to fore- 
close such mortgage has been filed, then his certificate that such mort- 
gage has never been foreclosed. Upon being satisfied that the mat- 
ters alleged in the petition are true, the court may make an order that 
the mortgage be discharged of record; The county clerk, upon being 
furnished with a certified copy of such order, and paid the fees al- 
lowed by law for discharging mortgages, shall record said order and 
discharge the mortgage of record.' 

§ 430. This statute was designed to remove an incumbrance 
which has been paid, and an allegation of payment must be explicitly 
made in the petition. The object of the statute seems to have been 
to relieve mortgagors and those claiming under them in a summary 
way from an incumbrance which, as stated in the first section of the 
act, from the lapse of time, is presumed to be paid, if it have in fact 
been paid, but satisfaction of which cannot be obtained without a^ 
formal proceeding therefor in a court of equity, in consequence of the 
death of the mortgagee, and of the fact that no letters testamentary 
or of administration have been granted in this State.'' The fact of 
payment must be distinctly alleged and proven, and it is not sufficient 
to show that the mortgage is so old that the statute of limitations 
would be a good defense if a foreclosure were to be attempted upon 
it.' 

SETTING ASIDE AND CANCELLING THE DI8CHAEGE OF A MORTGAGE. 

§ 431. Certificate of satisfaction cancelled for fraud or mis- 
take. — A court of equity will set aside a cancellation of a mortgage 
upon satisfactory proof that it was procured by fraud, or done by 
mistake, provided it can be done without prejudice to any rights ac- 
quired upon the faith of such cancellation.* 

If it be established that a certificate of satisfaction was executed 



' Laws of 1862, c. 365, as amended by v. Schafifer, Id. 401 ; Hampton v. Nich- 

Laws of 1868, c. 798, and Laws of 1873, olson, Id. 423 ; Stover v. Wood, 26 Id. 

c. 551. 417 ; Ellis V. Lindley, 37 Iowa, 334 ; 

''Brady, J., in the matter of Town- Cobb v. Dyer, 6g Me. 494 ; Hollenbeck 

send, 4 Hun, 31 ; s. c. 6 N. Y. Sup. (T. v. Shoyer, 16 Wis. 499 ; Mallett v. Page, 

&C.) 227. 8 Ind. 364; Barnes v. Camack, i Barb. 

2 The matter of Townsend, supra. 392 ; compare Chew v. Chew, 23 N. J. 

^ Russell V. Miner, 42 Cal. 475 ; Dud- Eq. 471. 
ley V. Bergen, 23 N. J. Eq. 397 ; Dubois 



§§432-433.] CANCELLING DISCHAEGE. 295 

tlirough fraud or mistake, it should be declared void, and, as be- 
tween the parties to it, the mortgage will continue a vahd lien upon 
the premises. Those who acquire subsequent titles or liens stand in 
no better condition than the mortgagor, unless they are hona fide 
purchasers or incumbrancers for value and without notice, in which 
case they will be protected.' 

But if the fraud by which the certificate is obtained amounts to a 
felony, it is utterly void as to all persons. By felony, in this con- 
nection, those acts are intended which constitute felonies at common 
law, and not statutory felonies; and a discharge obtained by false 
pretenses merely will be valid to protect a hona fide purchaser.'' 

§ 432. A release can only be operative where it is duly de- 
livered, and, upon this principle, where a mortgagee executed a re- 
lease of one of two parcels of land covered by the mortgage and sent 
it to a third party to deliver to the mortgagor, provided his said 
mortgage was a first lien on the remaining parcel, and the mortgagor 
knew of the condition ; but because of mistake as to the facts the 
agent delivered the release, and the mortgage proved not to be a first 
lien as provided, it was held that the delivery did not bind the mort- 
gagee." 

Where a release of a mortgage was executed by the mortgagee, and 
sent to an agent to be delivered on payment of the balance due on the 
mortgage, and a subsequent purchaser procured the same to be sur- 
rendered to him upon his promise to pay in a few weeks, which he 
neglected to do, it was held that the release was inoperative." 

It has even been said that an innocent purchaser would not be 
protected by the record of a certificate of satisfaction not duly de- 
livered.' 

§ 433. Reinstating mortgage so as to protect against junior 
liens. — Where a mortgagee took a part of the property in satisfaction 
of his mortgage, in ignorance of subsequent mortgages which had 
been fraudulently concealed, an action was sustained to set aside the 
satisfaction piece." 

Again, a purchaser of property who paid a mortgage, and caused 

' Fassett v. Smith, 23 N. Y. 252. « Lambert v. Leland, 2 Sweeny, 218 ; 

° Id. State V. Newark, 25 N. J. 197 ; Gunn v. 

8 Rose V. Rose, 20 W. Dig. 334. Barry, 15 Wall. 610 ; Columbia Bank v. 

* Hale V. Morgan, 68 111. 244. Jacobs, 10 Mich. 349; Bennett v. Nichols, 

= Stanley v. Valentine, 79 111. 544. 12 Id. 22 ; French v. Stone, 6 Cent. L. J. 



296 MOKTaAGES OF REAL PKOPEETT. [§§ 434-435. 

it to be satisfied lq ignorance of a subsequent judgment, was held 
entitled to have the mortgage revived for his protection.' 

Where a mortgagee, for the purpose of extending the time of pay- 
ment, took new notes secured by a new mortgage on the same land, 
giving up the old notes and entering satisfaction of the old mortgage, 
in ignorance of the fact that the mortgagor had, only a day or two 
before, given another mortgage to a third person, which was on record 
at the time, it was held that in equity his lien on the land was not 
subordinate to the intervening mortgage, and his lien was rein- 
stated.^ 

Where a mortgagee discharged his mortgage on certain lands in 
consideration of a conveyance of a portion of them, which he under- 
stood to be unincumbered, but on which, in fact, an attachment had 
been levied since the mortgage had been given, it was held that the 
discharge should be set aside.^ 

§ 434. Where a valid lien is discharged in consideration of 
an invalid one. — Where a usurious mortgage was given in consider- 
ation for the cancellation of two valid securities and the new mort- 
gage was adjudged void for the usury, the court, in an action brought 
for that purpose, set aside the certificates of satisfaction of the two 
prior mortgages, and declared them valid and subsisting liens upon 
the land." 

Upon a similar principle a lender who paid a mortgage and pro- 
cured it to be discharged, relying upon a mortgage which was void 
for lack of power in the mortgagor to execute it, was subrogated to 
the paid mortgage, and the cancellation of it was set aside for his 
protection.' 

A satisfaction executed oa the faith of a check or note which is not 
paid may be cancelled and the mortgage reinstated and enforced." 

§435. Satisfaction on the record set* aside. — Where a mort- 



' Barnes v. Mott, 64 N. Y. 397, 401 ; * Underhill v. Crennan, 25 Hun, 569 ; 

Hutchinson v. Swartsweller, 31 N. J. Eq. Patterson v. Birdsall, 64N.Y. 294, affi'g 

205 ; Wilson v. Kimball, 27 N. H. 300. s. c. 6 Hun, 632. 

= Campbell v. Trotter, 100 111. 281 ; ' Gans v. Thieme, 93 N. Y. 225 ; Gil- 

Bruse V. Nelson, 35 Iowa, 157. bert v. Gilbert, 39 Iowa, 657; Trades- 

' French v. De Bow, 38 Mich. 708 ; men's Association v. Thompson, 32 N. 

Michigan Panelling Co. v, Parvell, 38 J. Eq, 133 ; Lockwood v, Marsh, 3 Nev. 

Mich. 475; Columbia Bank v. Jacobs, 10 138, 

Mich, 349 ; Shaver v, Williams, 87 111, ' Middlesex v. Thomas, 20 N. J. Eq. 

469; i§ AiP. h. Reg, (N, S.) 132, 391 J Hollenbeckv. Shoyer, 16 Wis. 499. 



§ 486.] cajstcellijstg disohae&e. 297 

gage security is paid by a surety or other person having equitable 
rights as a surety, by reason of subsequent interest in the mortgaged 
property, the person making such payment becomes entitled to en- 
force the mortgage under the equitable doctrine of " subrogation." " 
Such right is never allowed to be defeated as against persons not hona 
fide purchasers because of circumstances that a formal discharge was 
executed. The cases on this doctrine are numerous and are collated 
in another part of this work." 

§ 436. Who may resist the reinstatement of a cancelled mort- 
gage. — A discharge of a mortgage upon the record, though obtained 
by false and fraudulent representations, will be a complete protection 
to a purchaser for value and without notice, as to whom the record 
will no longer be notice of its existence.' But a mere judgment 
creditor of the mortgagor has no equity that will enable him to resist 
the reinstatement and enforcement of the mortgage," though a pur- 
chaser under the judgment has been said to stand in a better 
position.^ 

A person who has parted with value and taken a deed or mortgage 
upon land is protected against a mortgage then discharged of record, 
because such is the provision of the recording act,^ and for no other 
reason. The cancelled mortgage, though it may still be valid, having 
been stricken from the record, stands as an unrecorded mortgage, and 
the rights of the parties are to be measured as if it had never been 
recorded. An unrecorded mortgage has priority over a subsequent 
judgment recovered against the mortgagor, and therefore a discharge 
fraudulently obtained may be cancelled, though the effect of such can- 
cellation is to divest the lien of a judgment recovered for a meritori- 
ous consideration, even in reliance upon the discharge. So, a junior 
mortgagee who grants indulgence to the mortgagor in reliance upon 
a discharge of the prior mortgage and thereby largely increases his 
lien, may not resist a cancellation of the discharge if the facts render 
such cancellation equitable as between the original parties to it. The 
mere delay and granting of indulgence does not render the junior 



' See § 444 ; title, Subrogation^ ' Fassett v. Smith, 23 N. Y. 252 ; Viele 

'§§ 444, 456; see also Robinson v. v. Judson, 15 Hun, 328; Etzler v. Evans, 

Leavitt, 7 N. H. 95 ; Rigney v. Lovejoy, 61 Ind. 56 ; Hedden v. Cowell, 37 N. J. 

13 N. H. 252 ; Wilson v. Kimball, 27 N. Eq. 89 ; Turner v. Flinn, 72 Ala. 532. 

H. 300 ; Kinsley v. Davis, 1883, Feb. * Stanley v. Valentine, 79 111. 544. 

(Me.) ; 27 Alb. L. J, 473 ; Wheeler v. * Vannice v. Bergen, 16 Iowa, 555. 

Willard, 44 Vt. 640. » I R, S. 756, § i. 



298 MOETGAaES OF EEAL PEOPEETT. [§§ 437-438. 

mortgagee a hona fide purchaser within the meaning of the record- 
ing act.' 

A grantee of mortgaged premises whose conveyance recites that 
the property is subject to a mortgage, has no equity to resist the can- 
cellation of it upon the record, if he has not paid it and such cancel- 
lation was made under a mistake of fact.'' 

Where a note and mortgage was assigned as collateral security, and 
thereafter, either by fraud or mistake, the mortgagee caused it to be 
marked satisfied upon the record, it was still treated as a valid and 
subsisting mortgage in favor of the assignee against a subsequent 
mortgagee vdth notice.' If the assignment had not been recorded 
and no notice of it could have been shown, the rule would have been 
otherwise.* 

§ 437. The law protects only the vigilant. — "Where by a mutual 
agreement the mortgagor was to procure money from a third party 
and pay ofE the mortgage, which the mortgagee was to release, and 
the lender was to have a new mortgage, and all three parties met in 
the register's office to carry out the transaction, which was so far car- 
ried out as to have the release of the old mortgage and the new mort- 
gage both delivered, and the money was given to the mortgagor, who 
suddenly fled with it, it was held that the release could not be set 
aside, and that the loss must fall upon the prior mortgagee, who had 
parted with the release before getting the custody of the money.' 

Upon a similar principle, where, through failure of the assignee of 
a mortgage to record his assignment, the way was opened for a fraudu- 
lent satisfaction of the mortgage by the assignor, and the mortgagor, 
acting in good faith, paid the amount due to the assignor, the assignee 
was without remedy under the mortgage." 

§ 438. Action for damages for unauthorized discharge. — 

Where a person not entitled to receive the money due upon a mort- 
gage, having assigned it, still appears of record to be its owner, a 
certificate of discharge executed by him will be a protection to a hona 
fide purchaser, but he wiU be liable to an action for damages by the 



' Weaver v. Edwards, 39 Hun, 233. * Daws v. Craig, 62 Iowa, 515 ; Bank, 

' Cobb V. Dyer, 69 Me. 494. etc., v. Anderson, 14 Iowa, 544. 
' Gibson v. Milne, i Nev. 526 ; Clift ' Robbins v. Todman, 28 Kans. 491. 
v. Nay, 105 Ind. 355 ; Burton v. Reagan, * Daws v. Craig, 62 Iowa, 515 ; Bank, 

75 Ind. 77 ; Anderson v, Hubble, 93 Ind. etc., v. Anderson, 14 Iowa, 544. 
570 ; 47 Am. R. 394. 



§§ 439-440.] KEissuE of paid moetgage. 299 

true owner if such discharge was unauthorized. In such an action 
the measure of damages will be the value of the part of the security 
released, not exceeding the amount of the debt secured.' 

In an action by the assignee of a note secured by mortgage against 
the assignor, to recover damages for the alleged unlawful act of the 
defendant in satisfying such mortgage while the note remained un- 
paid, the complaint should allege the value of the security, which 
will be the measure of damages." 

EEISSTJE OF PAID MOETGAGE. 

§ 439. Mortgage absolutely cancelled by payment of debt.— 

A mortgage executed to secure a specific debt ceases to have any 
force after the payment of that debt, and cannot be revived to secure 
a new obligation, even as between the parties, without a new grant.^ 
The written evidence of one contract cannot be used as the evidence 
of another and a different contract ; and when the original object for 
which the mortgage was given has been fully accomplished and satis- 
fied, it cannot be revived and kept on foot by a parol agreement sub- 
sequent to its creation, for other objects than those agreed upon at 
the time of its execution. The debt is the principal thing and the 
mortgage a mere incident. The first is the substance, the latter its 
shadow. When the first is destroyed by payment the latter vanishes. 
It cannot become the incident to another principal nor the shadow of 
another substance.* 

§ 440. A mortgage made at its inception to secure future ad- 
vances, or for a general balance of account arising on a series of 
transactions, stands on a different footing. As between the parties 
there may be times when the security could not be enforced for any 
sum, and thereafter it could grow and diminish in value according to 



' Stebbins v. Howell, 4 Abb. App. ^Per Shankland, J., in Mead v. York, 

Dec. 297. 6 N. Y. (2 Seld.) 449 ; see also Spencer 

* Fox V. Wray, 56 Ind. 423. v. Fredendall, 15 Wis. 660 ; Darst v. 

^ Stoddard v. Hart, 23 N. Y. 556 ; Gale, 83 III. 136 ; Johnson v. Anderson, 

Hubbard v. Blakeslee, 8 Hun, 603 ; 30 Ark. 745 ; Peckham v. Haddock, 36 

Bank of Utica v. Finch, 3 Barb. Ch. 111. 38. A new delivery of a paid mort- 

293 ; James v. Morey, 2 Cow. 246, 292 ; gage has been held to make a new mort- 

Townsend v. Empire Stone Dressing gage of it. Underbill v. Atwater, 22 N. 

Co., 6 Duer, 208 ; Merrill v. Chase, 85 J. Eq. 16. And a brief memorandum 

Mass. (3 Allen) 339 ; Thomas' Appeal, under seal indorsed on an old mortgage 

30 Pa. St. 378 ; Nosier v. Haynes, 2 would doubtless create a new lien. Cha- 

Nev. 53. teau v. Thompson, 2 Ohio St. 114. 



300 MORTGAGES OF EEAL PROPERTY. [§§ 441-442. 

the varying condition of the account. But all of this would be in 
accordance with the contract made at the time of the creation of the 
lien, and the wide latitude for the admission of parol proof to demon- 
strate the real nature of the contract, has heretofore been considered 
in treating of mortgages for future advances.' Where the defeasance 
is by parol and the mortgage is in the form of a conveyance absolute 
on its face, the security may be peculiarly elastic, and it has even been 
said, that in the absence of proof, the presumption would be that new 
credits or new advances were given or made by" the creditor on the 
faith of the security in his hands.'' If this be so, it is because of a 
presumed contract made at the time of the original grant, for even in 
the case of a mortgage with a mere parol defeasance, something more 
than a subsequent parol agreement is necessary to enlarge the lien.' 

§441. Debt must be actually satisfied. — ^But in order that a 
mortgage shall cease to have force, the debt must actually be paid and 
satisfied, and we have already seen that this is frequently a question 
depending on niceties of intention and of fact, and that the mere 
circumstance that the debtor delivers money or property to his cred- 
itor is not always controlling.' 

Although a mortgage may be without force as between the parties 
because of payment, this will not be allowed to defeat the claims of 
a purchaser of the securities on the faith of its apparent validity, if 
the sale is made with the approval and concurrence of the mortgagor.' 
In such a case the mortgagor will be estopped from alleging that the 
mortgage is satisfied. This principle has also been declared where a 
purchaser of land who had paid notes secured by mortgage, obtained 
a loan on such notes by representing them to be valid." 

§ 442. Reissued mortgage sustained to do equity. — Equitable 
principles have sometimes successfully been invoked in aid of an at- 
tempt to hold a mortgage for a debt created subsequent to the crea- 
tion of the lien, and a court of equity wiU not grant affirmative rehef 



' Ante, §§ 193 to 197. II Paige, 228 ; Hubbell v. Blakeslee, 71 

''Jarvis v. Rogers, 15 Mass. 389; N. Y. 63, 70 ; Coles v. Appleby, 87 N. Y. 

James v. Johnson, 6 Johns. Ch. 417, 429. 114 ; Champney v. Coope, 32 N. Y. 

Contra, Ex parte Hooper, 19 Ves. 477. 543. 

2 Walker v. Snediker, Hoff. Ch. 145 ; ' Purser v. Anderson, 4 Edw. Ch. 17 ; 

Johnson v. Anderson, 30 Ark. 745. Underhill v. Atwater, 22 N. J. Eq. 16 ; 

^ Ante, §§ 335 to 341 ; Peck v. Mi- Jordan v. Forlong, 19 Ohio St. 89. 

not, 3 Abb. App. Dec. 465 ; Bockes v. ' International Bank v. Bowen, 80 111. 

Hathorn, 20 Hun, 503 ; Toll v. Hiller, 541. 



§§ 443-444. J suBEOGATiosr. 301 

against such a mortgage, except upon condition of doing equity.' 
So, where an agreement to revive the hen of a paid mortgage to se- 
cure a new debt was held to be inoperative on the ground that a new 
instrument under seal was legally necessary, justice has been done by 
giving effect to the contract by holding that it operated as an equita- 
ble mortgage." 

§ 443. Junior titles and liens always protected. — However the 
rule may be as between the parties primarily obligated to pay the 
mortgage debt, and those entitled to demand such payment, it is en- 
tirely clear that a mortgage which has once been cancelled by pay- 
ment cannot afterward be revived to the prejudice of persons whose 
rights have vested prior to such attempted revival.'' And the case 
will not be altered by the circumstance that no receipt for such pay- 
ment is given.* 

SDEEOGATION. 

§ 444. General principles upon which subrogation is allowed. 

— It is a general principle controlling in courts of equity that where 
a surety, or one in the position of a surety, pays the debt of his prin- 
cipal, he is entitled to be put in the place of the creditor, and to all 
the means which the creditor possessed, to enforce payment against 
the principal.* Chancellor Kent said, in Hayes v. Wa/rd (4 Johns. 
Ch. 130) : " This doctrine does not belong merely to the civil law 
system. It is equally a settled principle in the English chancery, 
that a surety will be entitled to every remedy which the creditor has 
against the principal debtor, to enforce every security, and to stand 
in the place of the creditor, and have his securities transferred to 
him, and to avail himself of those securities against the debtor ; the 
right of the surety stands not upon contract, but upon the same prin- 

' Joslyn V. Wyman, 87 Mass. (5 Allen) fingwell, 4 Mo. App. 525 ; Bowman v. 

62 ; Merrill v. Chase, 85 Id. (3 Allen) 339. Manter, 33 N. H. 530. 

^ Peckham v. Haddock, 36 111. 38. * Large v. Van Doren, 14 N. J. Eq. 208. 

* Marvin v. Vedder, 5 Cow. 671 ; Pur- ' Wadsworth v. Lyon, 93 N. Y. 201, 212; 

ser V. Anderson, 4 Edw. Ch. 17 ; Mc- Champney v. Coope, 34 Barb. 539 ; 32 

Given v. Wheelock, 7 Barb. 22 ; Mead N. Y. 543 ; Lewis v. Palmer, 28 N. Y. 

V. York, 6 N. Y. 449 ; Warner v. Blake- 271 ; Harbeck v. Vanderbilt, 20 N. Y. 

man, 36 Barb. 501 ; Kellogg v. Ames, 41 395 ; Clason v. Morris, 10 Johns. 524 ; 

Barb. 218 ; Champney v. Coope, 32 N. Wilkes v. Harper, 2 Barb. Ch. 338 ; 

Y. 543, rev'g 34 Barb. 539 ; York Co. Matthews v. Aikin, i N. Y. (i Comst.) 

Savings Bank v. Roberts, 70 Me. 384 ; 595 ; Hodgson v. Shaw, 3 Myl. & K. 

Gardner v. James, 7 R. I. 396 ; Jones v. 183 ; Edgerly v. Emerson, 3 Foster (N. 

Brogan, 29 N. J. Eq. 139 ; Swope v. Lef- J.) 555 ; Story's Eq. Jur. § 499. 



302 MOETGAGES OP BEAL PEOPEKTY. [§ 445. 

ciple of natural justice upon which one surety is entitled to contri- 
bution from another." 

This right of subrogation, as it is called, does not depend upon any 
assignment, but rests upon principles of equity and fairness. In an- 
other part of this work the right to an evidence of transfer on pay- 
ment being made is considered.' The present topic touches the rights 
of parties in the absence of any formal assignment. 

The doctrine of subrogation is a device to promote justice. "We 
shall never handle it unwisely if that purpose controls the effort, and 
the resultant equity is steadily kept in view.' 

The right to be subrogated on payment is not identical with the 
right of redemption.' No person has a right to redeem from a mort- 
gage except the mortgagor and those who have derived some interest 
in or lien upon the mortgaged premises under him ;' but the right to 
pay and be subrogated belongs to every surety. 

The doctrine of subrogation or substitution, at first applied in be- 
half of those who were bound by the original security with the prin- 
cipal debtor, has been greatly extended ; and the principle, modified 
to meet the circumstances as they have arisen, has been applied in 
favor of volunteers intervening subsequent to the original obUgation, 
and as between different classes of sureties, and in the marshalling 
of assets, and prescribing the order in which property and funds shall 
be subjected to the discharge of different classes of obligations, and 
as between different classes of creditors, so as to do substantial justice 
and equity in each case." 

Where the payee of a promissory note transferred it by indorse- 
ment, and the maker thereafter secured the debt by a mortgage to 
the indorser, and the payee was afterward compelled to pay the note, 
he was held entitled to enforce the mortgage for his indemnity." 

§ 445. Volunteer or meddler is not protected by subrogation. 

• — A mere stranger who voluntarily pays money due on a mortgage, 

' Chap. XVIII., tit. Redemption. ' Per Allen, J., in Barnes v. Mott, 64 N. 

•^ Per Finch, J., in Acer v. Hotchkiss, Y. 397, 402; Story's Eq. Jur. §§ 633, 635, 

97 N. Y. 395, 402. 636 ; Bank of United States v. Winston, 

' Ellsworth V. Lockwood, 42 N. Y. 89. 2 Brock. 252 ; Ingalls v. Morgan, 10 

* Story's Eq. Jur. § 1023 ; Grant v. N. Y. (6 Seld.) 179 ; Atlantic Ins. Co. v. 
Duane, 9 Johns. 612 ; Lomax v. Bird, i Storrow, 5 Paige, 285 ; Graham v. Dick- 
Verm. 182 ; Boarman v. Catlett, 13 Sm. inson, 3 Barb. Ch. 169. 
& Marsh (Miss.) 149 ; McDougald v. * O'Hara v. Haas, 56 Miss. 374 ; Ott- 
Capron, 7 Gray, 278 ; Porter v. Read, man v. Moak, 3 Sand. Ch. 431 ; Drew v. 
ig Maine, 363. Lockett, 52 Beavan, 499. 



§ 446.] SUBEOGATION. 303 

and fails to take an assignment of it, but allows it to be cancelled and 
discharged, cannot afterward come into equity, and in the absence of 
fraud, accident, or mistake of fact, have the mortgage reinstated and 
himself subrogated to the rights of the mortgagee.' 

A stranger to a mortgage debt has a right to bargain for its pur- 
chase and to take an assignment which will vest in him all of the 
rights of the mortgagee," but a court of equity will not lend its aid to 
enforce a claim of a mere volunteer to pay off a mortgage on the 
lands of another, neither will it subrogate such a volunteer to the 
rights of a mortgagee under a mortgage thus paid.° 

In order that a person shall be excluded from the benefit of a right 
to subrogation, he must be in truth a mere volunteer and meddler in 
an afiair that does not concern him, since the rule appears to be to 
grant the right to every one else . whose equitable rights appear to 
require it. All persons bound as sureties for the debt, or holding 
junior Hens on the property, or holding an interest in the property 
as dowress or tenant by the courtesy or the hke,' are protected by sub- 
rogation. And even a third person may be subrogated to the rights 
of a lienor if he pays such Uen at the request of a person personally 
obligated for its payment, or who is the owner of the estate upon 
which it is a charge.^ So, where one advances to another money to 
pay a lien on the latter's property and he is to receive a security for 
his loan, and the security given is for any cause void, the lender will 
be subrogated by a court of equity to the rights of the paid lienor, 
and may enforce them as far as necessary to make good his debt 
where no prior equities have intervened." 

A third person may also have a mortgage which has been paid by 
him revived for his benefit, when fraud, accident, or mistake make it 
equitable that this should be done.' 

§ 446. For the purpose of being entitled to subrogation every 
person is a surety who is compelled to pay a debt not his own, either 



' Acer V. Hotchkiss, 97 N. Y. 395 ; Guy son v. Parmely, 14 Hun, 398 ; Stover v. 

V. Du Uprey, 16 Cal. 195 ; Wotff v. Wal- Wood, 26 N. J. Eq. 417 ; Reed v. King, 

ter, 56 Mo. 29Z. 23 Iowa, 500 ; Reagan v. Hadley, 57 

'•^ Lovejoy v. Vose, 73 Me. 46. Ind. 509 ; Sheldon on Subrogation, §§ 8, 

' Smith V. Austin, 9 Mich. 465. 19, 20 ; Russell v. Mixer, 42 Cal. 475 ; 

* Gatewood v. Gatewood, 75 Va. Bruce v. Bonney, 12 Gray, 107. 

407. ~~~~ ' Chase v. Peck, 21 N. Y. 581 ; Hatch 

* Wolff V. Walter, 56 Mo. 292. v. Morris, 3 Edw. Ch. 313 ; Moore v. 
' Gans V. Thieme, 93 N. Y. 225 ; John- Thomas, i Oregon, 201. 



304 MOETGAaES or EEAL PKOPEETT. [§ 447. 

because of a contract or because it was necessary to do so to preserve 
some junior lien or interest in property upon which such debt was a 
charge. The contract out of which the relation of surety arises need 
not of necessity be between the creditor and the surety. A person 
may be treated for some purposes in equity as a surety who, as 
between himself and his creditor, is the principal debtor ; as, for in- 
stance, when a third person has, for a valuable consideration received 
from the debtor, assumed the debt and made it his own. This is 
the case where a mortgage debt is assumed by a grantee of the mort- 
gagor." So, too, where a mortgagor conveys the equity of redemp- 
tion, though the purchaser makes no personal covenant topay the 
mortgage debt. In such a case the mortgaged premises become the 
primary fund for the payment of the debt, and, if the mortgagor pays 
the debt to protect himself from an action on the bond, he will be 
entitled to be substituted to the mortgage security as it originally 
existed, with the right to proceed immediately against the land for 
his indemnity." 

A purchaser cannot be subrogated to the benefit of an incumbrance 
which he has agreed to pay,' except for the purpose of protecting 
him against the inequitable claims of persons having no rights in his 
covenant. 

§ 447. Even where there is only a colorable obligation to pay 

in protecting an estate supposed to exist, the right of subrogation will 
arise. Thus where a purchaser at a foreclosure sale, supposing he 
had acquired a perfect title, paid a valid prior mortgage, and the sale 
was set aside because of irregularities, it was held that the purchaser 
was entitled to be subrogated to the rights of the holder of the lien 
which he had discharged.* 

So, where an executor assumed to convey real estate of his testator, 
and the purchaser, in reliance on the title thus obtained, discharged a 
valid mortgage ; and a child born after the date of the will, and not 
provided for therein, brought ejisctment to recover the land, the title 



' Stebbins v. Hall, 29 Barb. 524 ; Rus- kemp v. Shelton, 11 Paige, 28 ; Marsh 

sell V. Pistor, 7 N. Y. 171 ; Flagg v. v. Pike, 10 Paige, 595 ; Cox v. Wlieeler, 

Munger, 9 N. Y. 483 ; Hartley v. Har- 7 Paige, 248 ; Baker v. Terrell, 8 Minn, 

rison, 24 N. Y. 170 ; Shinn v. Shinn, gi 195 ; Wood v. Smith, 51 Iowa, 156 ; 

111. 477 ; Risk V. Hoffman, 69 Ind. Hansell v. Lutz, 20 Pa. St. 284. 

137. * Birke v. Abbott, 103 Ind. i ; Coulton 

' Calvo V. Davies, 73 N. Y. 211 ; Tice v. Jackson, 121 Mass. 592. 

V. Annin, 2 Johns. Ch. 125 ; Vander- * Muir v. Berkshire, 52 Ind. 149. 



§ 448.] SUBEOGATION. 305 

of the heir was sustained, but the right of the purchaser to be subro- 
gated to the lien which he had paid was carefully preserved in the 
judgment.' 

The equitable doctrine of subrogation is also applied where a party 
is compelled to pay the debt of a third person to protect his own 
rights or to save his own property. Subrogation is founded on prin- 
ciples of equity and benevolence, and may be decreed where no con- 
tract or privity of any kind exists between parties. "Whenever one 
not a mere volunteer discharges the debt of another, he is entitled to 
all the remedies which the creditor possessed against the debtor." 

§ 448. The right of a junior incumbrancer to be subrogated 

in the place of a senior incumbrancer upon payment of the Ken of 
the latter, rests upon the principle that justice and equity require that 
he should be entitled to the rights and securities of the senior incum- 
brancer. He is bound to pay the demand of the senior incumbrancer, 
and, upon so doing, it is but equitable and just that he should be al- 
lowed to control the lien which stands in the way of obtaining the 
amount of his debt.' 

One who levies on the equity of redemption of a mortgagor, and 
pays ofE mortgages to which his levy is subject, becomes by such pay- 
ment the assignee in equity of the mortgages, and is entitled to all 
the rights of the mortgagees in the premises.* 

A mortgagee of personal property who purchases a claim secured 
by a prior attachment lien on the property, acquires an equitable lien 
as against attachments levied subsequently to the mortgage for the 
moneys thus expended, though the statutory lien of the prior attach- 
ment may have been technically extinguished by the enforcement of 
the mortgage.' 

Where a mortgagee was compelled, for his own security, to satisfy 
an execution against the mortgagor on a prior judgment, he was held 
entitled to retain out of the proceeds of the sale the amount advanced 
with interest." 

' Smith V. Robertson, 8g N. Y. 555. 363 ; Frost v. Yonkers Sav. Bank, 70 N, 

" Cole V. Malcolm, 66 N. Y. 363, 366 ; Y. 553 ; Weld v. Sabin, 20 N. H. 533 ; sr 

Cottrell's Appeal, 23 Penn. 294; Lidder- Am. Dec. 240 ; Dings v. Parshall, 7 Hun, 

dale's Ex'rs V.Robinson's Adm'r,2 Brock- 522 ; Land Co. v. Peck, H2 111. 408. 

enbough, 159; Miller v. Winchell, 70 N. * Warren v. Warren, 30 Verm. 530; 

Y. 437. Lucking v. Wesson, 25 Mich. 443. 

^Per Miller, J., in Clark v. Mackin, * Armstrong v. McAlpin, 18 OhioSt. 184. 

95 N. Y. 346, 351; Twombley V. Cassidy, ^Silver Lake Bank v. North, 4 Johns, 

82 N. Y. 155 ; Cole v. Malcolm, 66 N. Y. Ch. 370. 
20 



306 MOETGAGES OP REAL PKOPERTT. [§ 448. 

Where a person advanced money on mortgage to take up a prior 
mortgage on the faith of a memorandum on the docket of a judg- 
ment, to the effect that it was " secured on appeal," and such memo- 
randum was void by reason of a want of notice of application for the 
order, the person advancing the money was held entitled to be subro- 
gated to the rights of the holder of the discharged mortgage.' 

The ovnier of real estate upon which there are two mortgages, who 
pays money on the prior lien in ignorance of the junior incumbrance, 
will be subrogated as to the amounts so paid for his indemnity." 

Payment of a mortgage by a person having an interest to protect 
operates as an assignment whenever justice requires it." 

Where a second mortgagee pays the first mortgage, the law will 
presume an assent by the prior lienor to the use of all securities 
in his hands in order to produce his reimbursement, where equity 
requires that to be done.* And when a purchaser of property 
pays off a prior incumbrance, and an attempt is made to subject 
the property in his hands to still other and subordinate incum- 
brances existing at the time of his purchase, it has been held that a 
court of equity will substitute him to the rights of those whose in- 
cumbrances he has paid off." This principle has been applied to the 
case of a fraudulent purchaser of a debtor's property who paid off an 
incumbrance upon it while he held the title." It was there said that 
it was entirely equitable that the defendant should be substituted in 
the place of the creditor whose debts he had paid ; although the con- 
veyance was void as to creditors, it was valid between the parties, and 
the debts were paid as a consideration in part for the conveyance.' 

A person who beheves himself to be the owner of real estate or 
iwho has an incumbrance upon it, who pays taxes or assessments,^ or 



' Green v. Milbank, 3 Abb. N. C. 138. 'Clutev. Emmerich, ggN. Y. 342, afB'g 

''Simpson v. Del Hoyo, 94 N. Y. i8g; 26 Hun, 10; Planters' Bank v. Dodson, 

Barnes v. Mott, 64 N. Y. 397 ; 21 Am. 9 S. & M. (Miss.) 527 ; Peet v. Beers, 4 

R. 625 ; Grreen v. Milbank, 3 Abb. N. C. Ind. 46 ; Fisher v. Johnson, 5 Id. 492. 

138 ; Snelling v. Mclntyre, 6 Abb. N. C. * Robinson v. Stewart, 10 N. Y. 189. 

469 ; Matzen V; Schaeffer, 65 Cal. 81. ' Per Daniels, J., in Clute v. Emmer- 

' Bacon v. Goodnow, 59 N. H. 415 ; ich, 26 Hun, 10, 15, afB'd 99 N. Y. 342. 

Stantonsv. Thompson, 49 Id. 272; Moore " Sidenberg v. Ely, 90 N. Y. 257; 43 

V. Beasom, 44 Id. 215 ; Rigney v. Love- Am. R. 163 ; Miner v. Beekman, 50 N. 

joy, 13 Id. 247 ; Robinson v. Leavitt, Y. 337 ; Clute v. Emmerich, 26 Hun, 10 ; 

7 Id. 73, 100 ; Ramsey v. Daniels, 1 Silver Lake Bank v. North, 4 Johns. Ch. 

Mackey (D. C.) 16. 37° ; Burr v. Veeder, 3 Wend. 412 ; 

■•Downer v. Fox, 5 Wash. Ver. 388 ; Rapelye v. Prince, 4 hill, iig ; Southard 

Cowley V. Shelby, 71 Ala. 122. v. Dorrington, 10 Neb. 122 ; Johnson v. 



§ 449.] STJBROGATION. 307 

rent,' or other charges or liens in protection of his title or lien, can 
claim a right to be reimbursed for such payments as against a real 
owner or a prior lienor. 

§ 449. Lender of money to be used in paying prior Hen. — It is 
true that a volunteer cannot acquire either an equitable lien or the 
right to subrogation f but one who, at the request of another, ad- 
vances his money to redeem or even to pay off a security in which | 
the other has an interest, or to the discharge of which he is bound, is 
not of that character, and in the absence of an express agreement, one 
would be implied, if necessary, that it shall subsist for his use, and 
it will be so enforced. But the doctrine of substitution may be ap- 
plied, although there is no contract, express or implied. It is said to 
rest " on the basis of mere equity and benevolence," ' and is resorted 
to for the purpose of doing justice between the parties." So, where 
a mortgage was made by an executrix on real estate already incum- 
bered by a previous mortgage, for the purpose of paying the prior 
lien and of securing a lower rate of interest, and this was carried out, 
the paid mortgage being cancelled and discharged ; and the executrix 
did not possess lawful power to execute the mortgage, it was held 
that the person advancing the money upon it was entitled, as against 
those taking the title of the premises, to have the satisfaction piece 
cancelled, and to be subrogated to the hen of the original mortgage.' 
And where money was loaned on the security of a mortgage sup- 
posed by the lender to be valid, but in fact the mortgage was forged 
and void, and the loan was made for the purpose of paying off a prior 
valid mortgage, the lender, or his assignee, was held entitled to sub- 
rogation to the rights of the prior mortgagee, there being no inter- 
vening rights." And for money advanced for necessaries and to pay 
off an incumbrance on his real estate for a person mentally incompe- 



Payne, ii Neb. 26g ; Walton v. Holly- ° Gans v. Thieme, 93 N. Y. 225 ; Gil- 
wood, 47 Mich. 385 ; Leitzbach v. Jack- bert v. Gilbert, 39 Iowa, 657 ; Trades- 
man, 28 Kans. 524 ; Rapelye v. Prince, men's Association v. Thompson,, 32 N. 
4 Hill, 119. J. Eq. 133; Insurance Co.. V. Marshall, 

' Robinson v. Ryan, 25 N. Y. 320. 32 N. J. Eq. 103 ; Lockwood v. Marsh, 

' Sanford v. McLean, 3 Paige, 122 ; 3 Nev. 138. Contra, Banta v. Garmo,. i 

Wilkes V. Harper, i N. Y. (i Comst.) Sand. Ch. 383 ; Garwood v. Adm'rs of 

586 ; 2 Barb. Ch. 338. Eldridge, i Green's Ch. (N. j:) 145 ; Mc- 

^ Cheesebrough v. Millard, i Johns. Daniels v. Flower Brook Manuf. Co.,. 22 

Ch. 409 ; I Story's Eq. Jur. § 493. Vt. 274 ; Watson v.. Wilcox, 39 Wis. 643. 

■■Per Danforth, J., in Gans v. * Evertson v. Central Bank, 33 Kans. 

Thieme, 93 N. Y. 225, 232. 352 ; Gilbert v. Gilbert,. 39 Iowa, 657. 



308 MOETGAGES OF EEA.L PEOPERTT. [§ 450. 

tent to contract, the party making the advances is entitled to a charge 
against his estate and to be subrogated to the benefit of the incum- 
brance which he has discharged.' 

So, where a person loaning money took a deed of trust as security, 
and applied a portion of the money so loaned in the discharge of a 
prior incumbrance on the premises embraced in his deed of trust, 
it was held that he was entitled in equity to be subrogated to the 
rights of the prior lien holder in respect to his security, although 
there was a formal release of the prior incumbrance, so as to protect 
him against the intervening lien of a judgment.^ 

Where a mortgagee cancelled a mortgage made by the ancestor and 
accepted a new security executed by the heir, he was heldentitled 'to 
a revivor of the earlier lien as against the claims of general credit- 
ors of the estate.' 

But the mere fact that borrowed money was used to pay off a 
mortgage or other lien upon land will not give the lender a right to 
be subrogated to the lien." 

§ 450. Usurer not protected by subrogation. — "Where the 
holder of a junior mortgage, in pursuance of a usurious contract with 
the owner of the equity of redemption, himself paid the prior lien, 
which, together with the junior mortgage, were thereupon cancelled 
of record, and a new security taken to include both mortgages and a 
bonus of $1,000 in addition, this latter security was adjudged void, 
but it was held that the satisfied junior mortgage was thereupon re- 
vived and that the junior mortgagee also had a right to be subrogated 
:to the prior lien. He had a right to pay and be subrogated by virtue 
,of his junior Hen, and this right was not destroyed by the usury.' 

But where a loan of money on usurious terms was made by a per- 
son having no junior lien to protect, for the purpose of paying a prior 
valid mortgage, which was discharged and a new mortgage was taken, 
no right of subrogation was held to exist, for the reason that the pay- 
ment was not made by the mortgagee, but the loan was made to the 
mortgagor, who used the money thus obtained to make the payment. 
Jn the case previoasly cited' the right to subrogation had its founda- 

' Coleman y. Eraser^ 3 Ky. 300. 105; Gaskill v. Wales, 36 N. J. Eq. 527 ; 

^ Tyrrell v. Ward, 102 111. 29 ; Gaskill Kitchell v. Mudgett, 37 Mich. 8t. 
■y. Wales, 36 N. J. :Eq,. 527. ' Patterson v. Birdsall, 64 N. Y. 294 ; 

' Hyde v. Tanner, ii Barb, 76. 21 Am. R. 609, affi'g 6 Hun, 632. 

* Smith V. Neilson, 13 Lea ,(Tenn.)46i; * Patterson v. Birdsall, supra. 
\yan Winkle y. WiUjam^,, 38 N. J. Eq. 



§§ 451-452.] STTBROGATION, 809 

tion in the payment made by the junior incumbrancei', and the fact 
that he laade it pursuant to a usurious bargain, was not a necessary 
part of the transaction ; but where the usurious loan was made to the 
mortgagor, who made the payment, all of the rights of the mortgagee 
had to be traced through the illegal contract, and depended upon and 
fell with it.' 

§ 451. Subrogation may be awarded to compel contribution. 

— Where tenants in common mortgage their lands for their joint 
debt, each is a surety of the other to the extent of the portion of the 
debt which the other ought to pay ; and if one pays the entire debt 
he will be subrogated to the rights of the creditor to the extent neces- 
sary to compel contribution from his co-tenant.'' 

Where a mortgagee obtained a judgment of foreclosure and one of 
several purchasers from the mortgagor paid the judgment, it was held 
that equity would work a subrogation of such purchaser to the rights 
of the mortgagee, so far as might be necessary to enable the former 
to compel contribution from persons liable thereto.' 

So, a mortgagee who has been compelled to pay an existing incum- 
brance, as well on the lands mortgaged to him as on other lands, may 
enforce the lien to compel the owner of such other lands to pay his 
proportion of the incumbrance." 

A person who owns a portion of mortgaged premises which, as be- 
tween himself and other owners of other portions, is not primarily 
bouad for the payment of the mortgage debt, may, upon paying the 
debt, enforce the lien against the other parcels which ought equit- 
ably to bear the burden.' 

A surety on one of seven bonds secured by a mortgage, on paying 
the bond on which he was obligated was held entitled to a propor- 
tionate part of the mortgage.' 

§ 452. Subrogation may also be decreed to remedy a mistake. 

— Upon this principle a person who purchases real estate which is 
subject to a mortgage and a judgment lien, and who pays the mort- 
gage and causes it to be satisfied and discharged upon the record, 
without any knowledge of the judgment, is entitled to be subrogated 



' Baldwin v. MofBtt, 94 N. Y. 82, affi'g * Lyman v. Little, 15 Vt. 576. 

26 Hun, 209. ' Rardin v. Walpole, 38 Ind. 146; Lay- 

'^ McLoughlin v. Curts, 27 Wis. 644 ; lin v. Knox, 41 Mich. 40. 

Fletcher v. Chase, 16 N. H. 39. * Lynch v. Hancock, 14 S. Car. 66. 

^ Matteson v. Thomas, 41 III. no. 



310 MOETGAGES OF EEAL PEOPEETT. [§§453-454. 

to the mortgage as against the judgment creditor.' So, also, where a 
purchaser at an administrator's sale, without notice of any defect in 
the proceedings, which were really without validity, paid the pur- 
chase money, which was used in paying a valid mortgage on the land, 
it was held that he was subrogated to such mortgage, which was to be 
treated as in full force for his benefit and protection." 

§ 453. Preventing an inequitable claim for dower. — Where a 
mortgage upon lands, executed by a husband and wife, was created 
to pay off a prior mortgage upon the premises, executed by the mort- 
gagor before his marriage, it afterward appearing that the wife, at 
the time she executed the last mortgage, was an infant, but that the 
fact of such infancy was not disclosed, it was held that the person 
taking the mortgage was entitled to be subrogated to the rights of 
the mortgagee under the first mortgage, and to have the same revived 
and enforced for his benefit, as against the claim of the wife of the 
mortgagor for dower.' 

So, where an unmarried man executed a mortgage and subse- 
quently married, and then executed a new mortgage to persons who 
paid off the first mortgage on its being released, the release of the 
old mortgage and the executing of the new being on the same day, 
it was held that the transaction was, in legal effect, an assignment of 
the first mortgage in consideration of the money advanced by the 
second mortgagees ; not the creating of a new incumbrance, but a 
changing of the form of the old.* 

In a similar case, however, only differing in the circumstance that 
the mortgagor falsely represented to the mortgagee that he was not 
married, and his wife, who was living apart from him, did not sign 
the new mortgage, the right of subrogation to the discharged secu- 
rity was refused, it being stated that the wife was " innocent." * 

§ 454. Surety subrogated to security given to co-surety. — A 

mortgage given by the principal debtor to one surety for his indem- 
nity inures to the benefit of a co-surety, and the mortgagee cannot 
apply the money realized thereon to any debt other than that speci- 
fied in the mortgage to the prejudice of his co-surety.' 

But a surety is not entitled to the benefit of a mortgage given to 

' Ayres v. Adams, 82 Ind. 109. * Swift v. Kraemer, 13 Cal. 526. 

' Blodgett V. Hitt, 29 Wis. 169. = Westfall v. Hintze, 7 Abb. N. C. 

° Snelling v. Mclntyre, 6 Abb. N. C. 236. 

469 ; Runyan v. Stewart, 12 Barb. 537. ° Steele v. Mealing, 24 Ala. 285. 



§ 455. J SUBROGATIOK. 311 

indemnify his co-snrety after the co-sureties' loss had been adjusted 
by each of the sureties paying one-half of the demand.' 

A mortgage given by the wife of the principal debtor upon her 
separate estate, for the exclusive use and benefit of one of her hus- 
band's sureties, does not inure to the benefit of his co-sureties.^ 

§ 455. Subrogation of creditor to collateral securities held by 
sureties. — A principal creditor has also been held to be authorized 
to lay hold upon all collateral securities given by the principal debtor 
for the discharge of the debt. Upon this principle, when the maker 
of a note executes a mortgage on his property to indemnify his ac- 
commodation indorsers on the note, the holders of the note will be 
entitled to the benefit of the mortgage, and may in equity siibject 
the mortgaged property to the satisfaction of his debt," and this right 
cannot be defeated by a release of the mortgage executed by the 
mortgagee.* 

If, however, the owner of the note has proved it against the several 
estates of the maker and indorser in bankruptcy, and by his vote has 
secured the discharge of the indorser, he cannot compel an assignment 
of the mortgage to himself.^ 

Where a mortgage was assigned by a principal debtor to a trustee 
for the protection of his surety, with authority to collect the amount 
due on the mortgage and pay the debt from the proceeds, on default 
of payment the creditor was held to be entitled to the security." 

So, the payee of a promissory note who transfers it by indorsement, 
and afterward, on failure of payment by the maker, is compelled to 
take it up, is entitled to enforce a mortgage executed by the maker 
to the indorser, while he held the note, to secure it.' 

A surety on appeal from a judgment recovered upon a note secured 
by a mortgage, when compelled to pay the judgment, is entitled to 
be subrogated to all the rights of the mortgagee under the mortgage." 



' Hall V. Cashman, i6 N. H. 462. * Dick v. Maury, 17 Miss. 448 ; Loehr 

' Leggett V. McClelland, 39 Ohio St. v. Colburn, 92 Ind. 24 ; Mitchell v. 

624. Smock, 94 Ind. 108. 

'Dick V. Maury, 17 Miss. 448 ; New ^ New Bedford Institution v. Fairhaven 

Bedford Institution v. Fairhaven Bank, Bank, 91 Mass. (9 Allen) 175. 

gi Mass. (9 Allen) 175; Ijames v. Gaither, * Galium v. Branch Bank of Mobile, 

93 N. C. 358 ; Demott v. Stockton Paper 23 Ala. 770. 

Ware Mfg. Co., 32 N. J. Eq. 124 ; Loehr ' O'Hara v. Haas, 46 Miss. 374. 

V. Colburn, 92 Ind. 24 ; McMuUin's ° Pence v. Armstrong, 95 Ind. 191 ; 

Adm'r v. Neal, 60 Ala. 552. Vert v. Voss, 74 Ind. 565. 



312 MORTGAGES OF REAL PEOPEETY. [§ 456. 

In order that the creditor may claim subrogation to a secnrity, it 
must appear that it was given by the person primarily obligated to 
pay the debt. No such subrogation can take place so as to give the 
creditor a claim upon a mortgage given by one of two sureties on his 
own real estate to his co-surety to protect him from loss by reason of 
having become surety for the principal.' 

§ 456. Pleadings to assert right of subrogation. — ^Where an 
action is brought to foreclose a mortgage, and a defendant who pays 
the debt desires to obtain a legal assignment in aid of his equitable 
claim to subrogation, no special averments need be made in his an- 
swer, and the relief may be granted to him upon a motion made in 
the action.'' But if a mortgagee has paid a prior lien and desires to 
tack it with his own, he must set out the facts upon which he relies 
in his complaint.' The reason for this rule is found in the fact that 
in a mere action of foreclosure, a title acquired prior to the execution 
of the mortgage can neither be contested nor defeated.' 



' Hampton V. Phipps,io8 U.S. (i Davis) = Emigrant Ind. Sav. Bank v. Clute, 

260; Seward v. Huntington, 94 N. Y. 33 Hun, 82 ; Aldrich v. Willis, 55 Cal. 81. 

104, rev'g 26 Hun, 216. * Emigrant Ind. Sav. Bank v. Clute, 

''Twombly v. Cassidy, 82 N. Y. 155. 33 Hun, 82. 



CHAPTER XII. 



THE EECOEDING ACTS. 



WHAT INSTRUMENTS MAY BE RECORDED. 

§457. Statute. 

458. Instruments within the statute. 

459. What instruments gain nothing 

from being recorded. 

460. Where two mortgages are talcen 

and recorded simultaneously. 

ACKNOWLEDGMENT OR PROOF. 

461. In order that an instrument shall 

be entitled to be recorded. 

462. Impeaching certificate of acknowl- 

edgment. 

463. Who may certify as to proof or 

acknowledgment. 

464. Sufficiency of certificate. 

METHOD OF RECORDING. 

465. In order to be valid as against 

strangers. 

466. A mortgage given for advances 

to be made. 

467. Defective record. 

468. Omission of seal. 

469. The mistake of a recording clerk. 

470. Indexing the record. 

471. Conveyances and mortgages must 

be recorded in different sets of 
books. 

472. The record must be according to 

law. 

473. Order of record. 

EFFECT OF THE RECORD. 

474. The effect of the record is limited 

to giving notice. 

475. What the record of a deed is no- 

tice of. 

476. The registry of a mortgage is no- 

tice of the contents. 

477. Priority of unrecorded convey- 

ances and mortgages over judg- 
ments. 

478. Record is notice only when grant- 

or's deed is also recorded. 
47g. Notice of grantor's title. 
480. Covenants of seizin and title. 



§481. Extent to which records must be 
searched to insure safety. 

WHO PROTECTED BY RECORDING ACTS. 

482. The recording acts only protect 

bona fide purchasers. 

483. Purchase from one having notice. 

484. Burden of proof. 

485. Subsequent purchasers alone pro- 

tected. 

486. The recording acts protect only 

those who record their deeds. 

NOTICE AS AFFF.CTING RECORDING ACTS. 

487. What actual notice is equivalent 

to a record. 

488. Constructive notice. 

489. Notice to put upon inquiry. 

490. Degree of inquiry required. 

491. The notice which will put a party 

upon inquiry. 

492. Possession as notice. 

493. Notice to an agent. 

494. Recitals in conveyances. 

495. The mere silence of a mortgagee. 

RECORDING ASSIGNMENTS OF MORTGAGES. 

496. Before the passage of the Revised 

Statutes. 

497. Under the provisions of the Re- 

vised Statutes. 

498. The recording of the assignment 

is notice. 

499. To what extent recording assign- 

ment protects assignee. 

500. Assignment is a " conveyance." 

501. Production of bond on assign- 

ment. 

502. Assignment of mortgage must be 

recorded among mortgages. 

503. Noting assignment on margin of 

record. 

JUDGMENT LIENS SUSPENDED UPON AP- 
PEAL. 

504. It is provided by Section 1256 of 

the Code. 

505. Purchasers and mortgagees "in 

good faith." 



314 MORTGAGES OF EEAL PEOPEETY. [§§ 457-458. 



WHAT INSTKUMENTS MAY BE EECOKDED. 

§ 457. Statute. — It is provided by statute that "every conveyance 
of real estate within this State, hereafter inade, shall be recorded in 
the office of the clerk of the county where such real estate shall be 
situated ; and every such conveyance not so recorded shall be void as 
against any subsequent purchaser, in good faith and for a valuable 
consideration, of the same real estate, or any portion thereof, whose 
conveyance shall be first duly recorded.' It is further provided that 
the term " real estate,'' as used in the act, shall be construed as co- 
extensive in meaning with " lands, tenements, and hereditaments," 
and as embracing all chattels real, except leases for a term not exceed- 
ing three years. The term " purchaser " is to be construed to em- 
brace every person to whom any estate, or interest in real estate, shall 
be conveyed for a valuable consideration ; and also every assignee of 
a mortgage or lease, or other conditional estate. The term " convey- 
ance" is to be construed to embrace every instrument in writing, by 
which any estate, or interest in real estate is created, aliened, mort- 
gaged, or assigned ; or by which the title to any real estate may be 
affected in law or equity, except last wills and testaments, leases for 
a term not exceeding three years, and executory contracts for the sale 
or purchase of lands." 

§ 458. Instruments within the statute. — The statute applies to 
mortgages, whether they be of freehold or of leasehold estates,' and 
written agreements which create equitable incumbrances in the nature 
of mortgages may be recorded, and the record will be notice to sub- 
sequent pui'chasers.' So the estate of a purchaser in possession of 
lands under a parol contract of sale may be mortgaged, and such 
mortgage may be recorded, and will be notice to subsequent pur- 
chasers and incumbrancers.^ 

A mortgage of a lease for less than three years is a chattel mort- 



' I R. S. 756, § I. V. Shriver, 3 Md. Ch. 381 ; Bellas v. 

'^ I R. S. 762, §§ 36, 37, 38. McCarty, 10 Watts, 13 ; Neligh v. Mich- 

' Johnson V. Stagg, 2 Johns. 510; Ber- enor, 3 Stockt. 539; Wilder v. Brooks, 

ry V. Mutual Ins. Co., 2 Johns. Ch. 603. 10 Minn. 50 ; Tarbell v. West, 86 N. Y! 

* Parkist v. Alexander, i Johns. Ch. 280 ; Edwards v. McKernan, 55 Mich. 

394 ; Hunt v". Johnson, ig N. Y. (5 520, and cases cited. Contra, Grimstone 

Smith) 279. V. Carter, 3 Paige, 421 ; Farmers' Loan 

' Tefft V. Munson, 63 Barb. 31 ; John- & Trust Co. v. Maltby, 8 Paige, 361 ; 

son V. Stagg, 2 Johns. 509 ; Stoddard v. Crane v. Turner, 7 Hun, 357 ; s. c. affi'd 

Whiting, 46 N. Y. 627 ; U. S. Ins. Co. 67 N. Y. 437. 



§ 459.] THE EECOEDING ACTS. 315 

gage, and must be filed in conformity with the provisions of law gov- 
erning such securities ;' but if the lease is for more than three years, 
it must be recorded just as if it were a mortgage on a fee." A mort- 
gage of such a lease, if the lease and mortgage are duly recorded, will 
be protected against a subsequent mortgage of the fee." 

A " satisfaction piece " of a mortgage under our statutes," is a simple 
instrument for reconveying or releasing the land from the lien of the 
mortgage. It is a " conveyance " under the recording act ; for by it 
an interest in real estate is aliened, and the title to real estate is affected 
in law and in equity.'' A certificate of satisfaction properly recorded 
is therefore a protection to a honafide purchaser of the property, even 
though the mortgage has been transferred by an unrecorded assign- 
ment." 

So, a release of part of a mortgage security is a " conveyance " of 
real estate under the recording act, and the record of it is constructive 
notice to subsequent purchasers.' 

An assignment of a bond and mortgage is a " conveyance " and is 
notice to subsequent purchasers of the same security,' though it is not 
notice to the mortgagor or his legal representatives." 

§ 459. What instruments gain nothing from being recorded. 

— A power of attorney to assign a mortgage,'" and a power to collect 
a mortgage and to execute satisfaction," are neither of them within 
the recording acts, and their record will not operate as notice. So, 
too, an agreement between two mortgagees fixing the priority of 
their several mortgages, is not entitled to record, and if recorded, will 
be inoperative as to subsequent purchasers." 

A covenant to assume and pay a mortgage debt is not a conveyance 
of real estate, and does not come within the recording act, and put- 

' Deane v. Hutchinson, 40 N. J. Eq. ling v. Cook, 39 Iowa, 200 ; Henderson 

83. V. Pilgrim, 22 Texas, 464. 

' I R. S. 762, § 36 ; Gaylord v. Cincin- ' Mutual Life Ins. Co. v. Wilcox, 55 

nati German Building Ass'n, 2 Cin. 163 ; How. 43 ; St. John v. Spaulding, i T. & 

Johnson v. Stagg, 2 Johns. 510; Berry C. 483. 

V. Mutual Ins. Co., 2 Johns. Ch. 603; 'Westbrook v. Gleason, 79 N. Y. 23; 

Decker v. Clarke, 11 C. E. Green (N. J.) Purdy v. Huntington, 42 N. Y. 334. 

163; Spielman v. Kliest, 36 N. J. Eq. 199. " Van Keuren v. Corkins, 66 N. Y. 77, 

^ Spielman v. Kliest, 36 N. J. Eq. 199. afB'g 4 Hun, 129. 

4 I R. S. 761, §§ 28, 29. " Williams v. Birbeck, Hoff. 359. 

= Bacon v. Van Schoonhoven, 19 Hun, " Jackson v. Richards, 6 Cow. 617. 

158, affi'd 87 N. Y. 446. " Gillig v. Maass, 28 N. Y. 191; Crane 

" Swartz's Ex'r v. List, 13 Ohio St. 419; v. Turner, 67 N. Y. 437 ; Bank for Sav- 

Cornog V. Fuller, 30 Iowa, 211; Bow- ings v. Frank, 56 How. 403. 



316 MORTGAaES OF REAL PEOPERTT. [§ 460. 

tiug it upon record does Bot give constructive notice to any one.' So, 
also, the recording act has no application to a covenant contained in 
a mortgage by the terms of which the mortgagor agrees to keep the 
property insured for the benefit of the mortgagee, and notice of such 
a covenant must depend upon proof independent of its provisions. 
It does not contemplate that such a covenant in a mortgage shall be 
more e£Eective from the fact that such mortgage is placed on the 
record or that the recording makes it an incumbrance upon the mort- 
gaged property. The object of the recording act was to protect sub- 
sequent purchasers and incumbrancers against previous unrecorded 
instruments, and not against a covenant relating to the policy of in- 
surance upon buildings upon the premises. Instruments which affect 
the land and the title are entitled to record, and not such as relate to 
collateral matters.'' 

It is not necessary to record an extension or renewal of a mortgage 
in order to charge purchasers with notice, the original mortgage being 
unsatisfied of record, even though the statute of limitations has run 
since such record." 

A mortgage of land containing a provision by which the mort- 
gagors pledge the " rents, issues, and profits " of the premises, though 
duly recorded, is not notice to a purchaser of the rents due or to grow 
due of the special lien upon them. The obligation of a tenant to pay 
rent is a chose in action and not real estate." 

§ 460. Where two mortgages are taken and recorded simul- 
taneously, the recording acts have no application, and their priority 
must be determined by equitable rules.' In such a case a court of 
equity will recognize and enforce an agreement or understanding as 
to priority ;" and the same rule will apply if one mortgage is accident- 
ally recorded a short time before the other.' In Greene v. Deal 
(64 JS". Y. 220),' the Court of Appeals held that the recording acts 
did not apply as between two mortgages both given for part of the 



' Judson V. Dada, 79 N. Y. 373 ; Mead ' Granger v. Crouch, 86 N. Y. 494 ; 

V. Parker, 29 Hun, 62. Stafford v. Van Rensselaer, 9 Cow. 316, 

'^ Per Miller, J., in Dunlop v. Avery, affi'g Van Rensselaer v. Stafford, Hopk. 

8g N. Y. 592, 598. 569 ; Douglass v. Peele, Clarke, 563. 

' Plant V. Shryock, 62 Miss. 821; Ben- * Jones v. Phelps, 2 Barb. Ch. 440. 

son V. Stewart, 30 Miss. 49; Green v. ' Rhoades v. Canfield, 8 Paige, 545; 

Supervisors, 58 Miss. 337. Sparks v. The State Bank, 7 Blackf. 469. 

* Riley v. Sexton, 32 Hun, 245 ; Wood ' Rev'g Greene v. Deal, 4 Hun, 703. 
V. Lester, 29 Barb. 145. 



§§ 461-462. J THE RECORDING ACTS. 317 

purchase money of the same property, and that fact appearing upon 
their face, and both bearing the same date, but one of which was re- 
corded a few hours before the other. The recording act declares that 
a conveyance not recorded shall be void as against any subsequent 
purchaser whose conveyance shall be first duly recorded, but it does 
not assume to control the rights of parties under instruments both of 
which were executed and delivered at the same time. 

Where a mortgage and judgment were entered of record the same 
day ; the mortgage which was not for purchase money being first 
entered, but there was nothing on the record to show the precise time 
of the entry of either, it was held that they were of equal lien.' 
This was under a statute making the iien of a mortgage as against a 
judgment to depend on priority of record. 

Priority of record will not give preference to one mortgage over 
another given at the same time to the same person.''' 

ACKNOWLEDGMENT OE PEOOP. 

§461. In order that an instrument shall be entitled to be 
recorded, it is necessary that its authenticity be attested in the 
form prescribed by the statute regulating the acknowledgment and 
proof of deeds. If this be omitted, or if the acknowledgment be in- 
formal or defective, the record, being unauthorized, will not be 
notice.' A certificate of acknowledgment which conforms on its 
face with the statute, is proof of its own genuineness ; and where it 
describes the proper officer acting in the proper place, it is taken as 
proof both of his character and local jurisdiction.^ The certificate is 
not conclusive, however, and the party affected by it may question its 
validity and the force and effect of the formal proof.' 

§ 463. Impeaching certificate of acknowledgment. — It is pro- 
vided by statute as follows : " The record of a conveyance duly re- 
corded, or a transcript thereof, duly certified, may also be read in 
evidence with the like force and effect as the original conveyance. 
Neither the certificate of the acknowledgment, or of the proof of any 



' Hendrickson's Appeal, 24 Penna. St. * Thurman v. Cameron, 24 Wend. 87. 

363. ' Jackson v. Schoonmaker, 4 Johns. 

^Gansen v.Tomlinson, 23 N.J.Eq. 405. 161; Jackson v. Perkins, 2 Wend. 308; 

' Frost V. Beekman, i Johns. Ch. 288; Morris v. Keyes, i Hill, 540; Jackson v. 

Dodd V. Parker, 40 Ark. 536 ; Girardin Rumsey, 3 Johns. Cas. 234 ; Thurman v. 

V. Lampe, 58 Wis. 267; Wood v. Reeves, Cameron, 24 Wend. 87. 
23 S. C. 382. 



318 MORTGAGES OF EEAL PBOPEETT. [§ 462. 

conveyance, nor the record or transcript of the record of such con- 
veyance, shall be conclusive, but may be rebutted, and the force and 
effect thereof may be contested by any party affected thereby. If the 
party contesting the proof of a conveyance shall make it appear that 
such proof was taken upon the oath of an interested or incompetent 
witness, neither such conveyance, nor the record thereof, shall be re- 
ceived in evidence until established by other competent proof." ' 

It has been said that the true view is that the certificate of ac- 
knowledgment ie, prima facie proof of the facts it contains, if within 
the officer's range, but is open to rebuttal between the parties by proof 
of gross concurrent mistake or fraud. In favor of purchasers for 
valuable consideration withoutf notice, it is conclusive as to all matters 
which it is the duty of the acknowledging oflicer to certify, if he has 
jurisdiction. As to all other persons it is open to dispute." 

In the absence of proof of fraud and collusion on the part of 
the officer taking and certifying the acknowledgment of a mortgage 
or other instrument, the officer's certificate in proper form will, for 
the purpose of protecting a hona fide purchaser, prevail over the un- 
supported testimony of the mortgagor that the same is false and the 
instrument is forged.' It has also been said that in taking the ac- 
knowledgment of a married woman to a deed or mortgage, the 
officer acts judicially, and, in the absence of fraud or duress, the evi- 
dence of the parties to the instrument is not admissible to contradict 
his official certificate, and to vitiate the instrument as against the title 
thereunder of a Tyonafide grantee or mortgagee.* 

A certificate of proof or acknowledgment to an instrument does 
not preclude any person affected by it to deny that the instrument 
was delivered,' or to show that one of the grantors was an infant, or 
non compos Tnentis." 

• I R. S. 759, § 17. Marshall, 32 N. J. Eq. 103, and cases 
' Wharton Ev., § 1052, and cases cited: cited by the court and by the reporter 

Heeter v. Glasgow, 79 Pa. St. 79 ; s. c. in a valuable note ; Shear v. Robinson, 

21 Am. R. 46. 18 Fla. 379, and cases cited ; White v. 

' Pereau v, Frederick, 17 Neb. 117; Graves, 107 Mass. 325; s c. 9 Am. R. 

Heeter v. Glasgow, 79 Penna. St. 79 ; 38 ; Kerr v. Russell, 69 111. 666 ; s. c. 18 

Gorham v. Anderson, 42 111. 514 ; Mon- Am. R. 634 ; Singer Manuf'g Co. v. 

roe V. Poormun, 62 111. 523 ; Borland v. Rook, 84 Penna. St. 442; s. c. 24 Am. R. 

Walrath, 33 Iowa, 130; Van Orman v. 204; Johnston v. Wallace, 53 Miss. 331; 

McGregor, 23 Iowa, 300 ; Hourtunne v. s. c. 24 Am. R. 699. 

Schnoor, 33 Mich. 274 ; Rowland v. '^ Jackson v. Perkins, 2 Wend. 308. 

Blake, 97 U. S. 624. ^ Jackson v. Schoonmaker, 4 Johns. 

* Homeopathic Mut. Life Ins. Co. v. 161. 



§ 463-464. J THE EECOKDIJSTG ACTS. 319 

§ 463. Who may certify as to proof or acknowledgment. — The 

act of taking and certifying tlie acknowledgment involves the dis- 
charge of no judicial duty which would incapacitate a person related 
to one of the parties from acting. It is merely a ministerial act, and 
may be performed by a person who is so related to the parties as to 
be disqualified as a judge or juror.' 

§ 464. Sufficiency of certificate. — If the certificate of acknowl- 
edgment is substantially defective, the paper cannot be read in evi- 
dence, and, though recorded, the record will not be effectual as 
notice.' And if the record shows no sufficient acknowledgment it 
will not be operative, though the original instrument is duly acknowl- 
edged." 

A certificate of proof or acknowledgment need not be in the pre- 
cise language of the statute, but is to be liberally construed, and is 
sufficient if it shows a substantial compliance with the statute.'' 

The recording of an instrument as a notice to subsequent purchas- 
ers or incumbrancers is not invalidated by proof of a latent defect in 
the acknowledgment. Thus, where the acknowledgment of an assign- 
ment of a mortgage was taken in New Jersey by a notary public of 
New York, but the certificate was in due form and purported to have 
been taken in New York, and the assignee had taken the assignment 
in good faith for a sound and adequate consideration, the record was 
held sufficient, and evidence of the irregularity was not permitted." 
Where the venue was laid in a county where the ofiicer had no juris- 
diction, it was held that parol proof was admissible to show that, as a 
matter of fact, it was taken in his county." 



' Lynch v. Livingston, 6 N. Y. (2 Seld.) 561 ; Meriam v. Harsen, 4 Edw. Ch. 70 ; 

422. s. c. 2 Barb. Ch. 232 ; West Point Iron 

'' Merritt v. Yates, 71 111. 636 ; s. c. 22 Co. v. Reymert, 45 N. Y. 703 ; Ritter v. 

Am. R. 128 ; Grove v. Todd, 41 Md. Worth, 58 N. Y. 627, rev'g s. c. i T. & 

633 ; s. c. 20 Am. R. 76. C. 406, As to acknowledgment by cor- 

^ Bishop V. Schneider, 46 Mo. 472 ; s. poration, see Trustees Can. Academy v. 

c. 2 Am. R. 533. So also if the statute McKechnie, go N. Y. 618. 

requires a witness and the record does ^ Heilbrun v. Hammond, 13 Hun, 474 ; 

not show one. Pringle v. Dunn, 37 Wis. Ross & Co.'s & Elsbrie's Appeals, 106 

449; s. c. 19 Am. R. 772. Pa. St. 82; Fuhrman v. Loudon, 13 

■* Canandaigua Academy v. McKech- Serg. & R. (Pa.'' 386 ; Angler v. Schief- 

nie, 19 Hun, 62 ; Jackson v. Gumaer, 2 felin, 72 Pa. St. 106; s. c. 13 Am. R. 659. 

Cowen, 552 ; Troup v. Haight, Hopk. * Angler v. Schieffelin, 72 Pa. St. 106 ; 

239 ; Duval v. Covenhoven, 4 Wend. s. c. 13 Am. R. 659. 



320 MORTGAGES OF REAL PEOPEETT. [§§ 465-467. 



METHOD OF EECOEDING. 

§ 465. In order to be valid as against strangers, a mortgage 
should give reasonable notice of the incumbrance. But to constitute 
such reasonable notice it is not requisite that the condition should be 
so c(impletely certain as to preclude the necessity of extraneous in- 
quiry ; and it is sufficient to state the subject matter of the mortgage 
and that from which, by the exercise of common prudence and ordi- 
nary diligence, the extent of the incumbrance may be ascertained.' 

So, a clause in an indemnity mortgage, to the effect that it is made 
to secure the payment of all sums now due or to grow due to the 
mortgagee from the mortgagor hereafter, is sufficient." 

Where a recorded mortgage recited that the bond was " condi- 
tioned for the payment of $1,500, lawful money of the United States, 
as in and by said obligation will appear," but the bond was condi- 
tioned for the payment of $1,500, lawful silver money of the United 
States, it was held that the mortgage could be satisfied by a lonafide 
purchaser without notice, by the payment of the amount in lawful 
money of any description.' 

§ 466. A mortgage given for advances to be made is notice to 
all intending purchasers and incumbrancers to its full amount, and 
this without regard to the question whether the advancements are 
optional or not. By such a record all persons are put upon inquiry 
to ascertain to what extent the advances have been made, and they 
may by notice prevent other advances to their prejudice.* 

§ 467. Defective record. — A recording officer is liable for any 
damage caused by his erroneous or defective performance of his du- 
ties,' as by marking a discharge upon the wrong mortgage, in conse- 
quence of which a purchaser suffers loss." 

An omission in the record of the middle name or initial of the 
mortgagor, or a mistake in it, wiU not affect. It is enough if one 
christian name is properly added to the surname.' 

' Stoughton V. Pasco, 5 Conn. 442. Y. 257 ; State v. Davis, 96 Ind. 539; Gil- 

' Bishop V. Allen, 55 Vt. 423. christ v. Gough, 63 Ind. 576. 

' Eagle Beneficial Society Appeal, 75 ' Building Ass'n v. Whitacre, 92 Ind. 

Pa. St. 226. 547. 

^ Ackerman v. Hunsicker, 85 N. Y. 'Clutev. Emmerich, 26 Hun, 10; Frank- 
43, rev'g s. c. 21 Hun, 53, and overrul- lin v. Talmadge, 5 Johns. 84 ; Roosevelt 
ing Ketcham v. Wood, 22 Hun, 64. See v. Gardinier, 2 Cow. 463 ; Milk v. Chris- 
further as to this, ante, §§ 201 to 203. tie, i Hill, 102 ; Weber v. Fowler, 11 

' Mutual Life Ins. Co. v. Dake, 87 N. How. 458. 



§§ 468-470.] THE EECORDING ACTS. 331 

The record of a mortgage from which the name of the mortgagee 
is omitted, does not charge a subsequent purchaser with notice.' 

After a paper is properly recorded, it continues to be notice even 
if the record is destroyed by fire.'' 

§ 468. Omission of seal. — It has been held that a purchaser from 
the mortgagor will not be charged with constructive notice of a mort- 
gage, the record of which shows that it was not under seal.' 

§ 469. The mistake of a recording clerk cannot operate to en- 
large the effect of a conveyance. For this reason, where a release of 
part of mortgaged premises was correctly made and executed, and in 
recording it the word "except" was erroneously omitted from the 
description, whereby an entirely different meaning was given to it, 
it was held that the mistake in the record could be shown, 6ven as 
against a person purchasing on the faith of it.* 

§ 470. Indexing the record. — General statutes require the clerks 
in the various counties of this State, and the registers in the counties 
of New York and Kings, to keep proper indices of the conveyances, 
mortgages, and other instruments left with them for record. For a 
wilful or fraudulent omission to note any paper in the proper index, 
any clerk or register would be liable to be indicted, and he would for 
any such omission, whether caused by mere neglect or otherwise, be 
liable in damages to any person who might thereby be made to suffer. 
The index, however, is not an essential part of the recording of any 
instrument. When a conveyance is delivered to the clerk, the stat- 
ute provides that it shall be " considered as recorded from the time of 
such delivery." ' A:^er such delivery nothing more need be done to 
keep the record perfect, except at the proper time to record it in its 
proper order in the proper book ; and yet if the conveyance in the. 
meantime, before the record thereof, should be mislaid at the clerk's 
office, or lost or purloined, the record would still remain complete.. 
In such case there could be no index of such conveyance, because^ 
until the time for recording it had arrived, it could not be known in, 
what book, or in what place in any book, it would be recorded." 

' Drake v. Wright, 49 Iowa, 538. * Simonson v. Falihee, 25 Hun,, 570. 

^ Shannon v. Hall, 72 111. 354 ; 22 Am. ' Kessler v. The State ex rel. Wilson, 

R. 146 ; Alvis V. Morrison, 63 111. 181 ; 24 Ind. 313 ; Wood & Bown's Appeal, 

14 Am. R. i'i7 ; Myers v. Buchanan, 46 82 Penna. St. 116. 
Miss. 397. ' Mutual Life Ins. Co. v. Dake, 87 N. 

' Caconillat v. Rene, 32 Cal. 450. Y. 257, affi'g s. c. i Abb.. N.. C 381 ; 

21 



322 MOETGAGES OF REAL PEOPEETY. [§§471-472. 

§471. Conveyances and mortgages must be recorded in dif- 
ferent sets of books. — The statute requires that different sets of 
books shall be provided by the clerks of the several counties, for the 
recording of deeds and mortgages ; in one of which sets, all convey- 
ances absolute in their terms, aad not intended as ruortgages or as 
securities in the nature of morlgages, shall be recorded ; and in the 
other set, such mortgages and securities shall be recorded. Every 
deed conveying real estate, which, by any other instrument in writ- 
ing, shall appear to have been intended only as a security in the nature 
of a mortgage, though it be an absolute conveyance in terms, shall be 
considered as a mortgage ; and the person for whose benefit such deed 
shall be made, shall not derive any advantage from the recording 
thereof, unless every writing, operating as a defeasance of the same, or 
explanatory of its being designed to have the effect only of a mortgage 
pr conditional deed, be also recorded therewith, and at the same time." 

§ 472. The record must be according to law. — It is a general 
principle that where the recording of an instrument is made con- 
structive notice, the record, to be effectual, must be according to law." 
Upon this principle, and under these statutory provisions, it has been 
held that the recording, as a deed, of an absolute deed intended as 
security in the nature of a mortgage, is not notice to a subsequent 
bona fide grantee or mortgagee, even though the defeasance is not in 
writing,' and the like effect will follow if the deed and the defeasance 
are both recorded among the conveyances.* If the defeasance is by 
parol, the mortgagee should execute a written defeasance and record 
it with the deed among the mortgages.' 

A deed, absolute on its face, but intended 'as security, though 
registered as a deed, is valid between the parties as a mortgage." If 

Bedford v. Tupper, 30 Hun, 174; Bishop Dunham v. Dey, 15 Johns. 555 ; James 

V. Schneider, 46 Mo. 472 ; 2 Am. R. v. Johnson, 6 Johns. Ch. 417 ; White v. 

533 ; Schell v. Stein, 76 Penna. St. 398 ; Moore, i Paige, 551 ; Ives v. Stone, 51 

18 Am. R. 416 ; see, also, Viele v. Jud- Conn. 446 ; Clark v. Watson, 141 Mass. 

son, 82 N. Y. 32, rev'g s. c. 15 Hun, 248. But see Bank, etc., v. Sav. Inst'n, 

328, and ovefrrulings, Moore v. Sloan, 62 Miss. 250. 

.50 Barb. 442. ■'Jackson v. Van Valkenburgh, 8 Cow. 

' I R. S. 756, §§ 2, 3. 260 ; Brown v. Dean, 3 Wend. 208 ; 

''N. Y. Life Ins, Co. v. White, 17 N. White v. Moore, i Paige, 551 ; Grim- 

Y. 469 ; Frost v. Beekman, i Johns. Ch. stone v. Carter, 3 Paige, 421 ; Corpman 

288 ; Lessee of Heister v. Fortner, 2 v. Baccastow, 84 Penna. St. 363. 

Binn. 40 ; Parsons v.. Lent, 34 N. J. Eq. ^ Warner v. Winslow, i Sandf. Ch. 

167. 430 ; White v. Moore, i Paige, 551. 

^Dey V. Dunham, 2 Johns. Ch. 182 ; *James v. Johnson, 6 Johns. Ch. 417. 



■§§473-474.] THE EECOKDINa ACTS. 323 

it be recorded as a deed, the record is a nullity, but, upon the mort- 
gagee acquiring the equity, the record of the deed becomes operative.' 

Where a conveyance is accompanied by an agreement which gives 
to the grantor a right to a portion of the profits on a resale within a 
specified time, and which requires the grantee to sell if a specified 
price can be obtained ; such an agreement is not inconsistent with the 
vesting of the title, and the conveyance is a deed and shoiild be re- 
corded as such." 

When a conveyance, absolute upon its face, is intended as a mort- 
gage, the purchaser from the grantee with notice of the facts, stands 
in the place of the equitable mortgagee.' But where a deed intended 
as security is recorded, the defeasance not being recorded, a purchaser 
for value from the grantee, without notice of the defeasance, will hold 
an absolute title as against the grantor and his grantees. It is an ab- 
solute deed, as regards third persons, and a iona fide purchaser will 
take the land discharged of the equity of redemption of the mort- 
gagor.* 

§ 473. Order of record. — Conveyances are directed to be recorded 
" in the order and as of the time when the same shall be delivered to 
the clerk for that purpose." ' If a county clerk should record amort- 
gage or deed in a blank space left in a book which had ceased to be 
used for current records, or in the book in use at a place among rec- 
ords of a date long anterior to the time it was left for record and to 
its date, it could not be affirmed that it was recorded according to 
law, or that it furnished the notice to subsequent incumbrancers or 
purchasers which the statute has provided for. The manner in which 
mortgages made to the commissioners for loaning the United States 
deposit fund are required to be recorded, is substantially the same, 
and the entry of such a mortgage out of the order due to its date, 
and upon a page which should have contained a mortgage several 
years antecedent in execution, is not notice to a subsequent mortgagee 
in good faith.° 

EFFECT OF THE EECOED. 

§ 474. The effect of the record is limited to giving notice. — 

The effect of recording an instrument is limited to giving notice. It 

' Warner v. Winslow, i Sandf. Ch. Whitlick v. Kane, i Paige, 202 ; Stod- 

430. dard v. Rotton, 5 Bosw. 378. 
^ Macaulay v. Porter, 71 N. Y. 173. ' i R. S. 260, § 24. 

'Williams v. Thorn, 11 Paige, 459. 'N. Y. Life Ins. Co. v. White, 17 N. 

* Mills V. Comstock, 5 Johns. Ch. 214 ; Y. (3 Smith) 469. 



824 MOBTGAGES OF EEAL PEOPERTT. [§§475-476. 

confers no validity upon the instrument whicli it did not have before, 
and for this reason the recording of a mortgage which has not been 
delivered is a nullity, and the subsequent assent of the mortgagee will 
not give him a preference over a person who has acquired rights in 
the property.' Any instrument which upon its face is regular, and 
purports to be a conveyance or a mortgage, may be recorded. But 
if it is not ia truth what it purports to be, it will not be aided by 
being engrossed by a recording clerk and put upon the files of a pubhc 
office." 

§ 475. What the record of a deed is notice of. — A deed duly 
recorded is evidence not only of the transfer and title, but of the 
covenants contained in it," and the record of a mortgage is notice of 
the statements contained in it which describe the debt, either in accu- 
rate terms or by reference to the bond which it is intended to secure.* 
The record of a mortgage which, upon its face, does not contain an 
accurate and full statement of the debt secured, is nevertheless notice 
of its existence and contents, and the purchaser with such notice is 
bound by all of the equities which the holder of the mortgage had 
against the mortgagor whose place he takes. Th^ condition of a pur 
chaser in such a case is precisely the same as it would have been at 
common law, if he had purchased with actual notice of the prior 
mortgage. ° A mortgage, properly recorded, is notice to all persons 
that such an instrument exists, and that its contents are what is spread 
upon the record." 

§ 476. The registry of a mortgage is notice of the contents 

of it, and of no more, and the purchaser is not to be charged with 
notice of facts which the records do not disclose. He is not bound 
to attend to the correctness of the registry. That is the business of 
the mortgagee, and if a mistake occurs to his prejudice, the conse- 
quences of it lie between him and the clerk, and not between him 
and the honafide purchaser. The act, in providing that all persons 
might have recourse to the registry, intended that as the correct and 
sufficient source of information ; and it would be a doctrine produc- 



' Foster v. Beardsley Scythe Co., 47 498. But see Payne v. Avery, 2i Mich. 

Barb. 505. 524. 

'Jackson v. Richards, 6 Cow. 617; 'Youngs v. Wilson, 27 N. Y. 351, 

Morrison v. Brand, 5 Daly, 40. rev'g s. c. 24 Barb. 510. 

' Morris v. Wadsworth, 17 Wend. 103. ' Thomson v. Wilcox, 7 Lans. 376. 

* Dimon v. Dunn, 15 N. Y. (i Smith) 



§§ 477-478. J THE KECOEDIN-G ACTS. 325 

tive of immense miscliief to oblige the purchaser to look, at his peril, 
to the contents of every mortgage, and to be bound by them when 
different from the contents as declared in the registry. The registry 
might prove only a snare to the purchaser, and no person could be 
safe in his purchase without hilnting out and inspecting the original 
mortgage, a task of great difficulty. The statute did not mean to 
put the party upon further inquiry. The registry was intended to 
contain, within itself, all the knowledge of the mortgage requisite for 
the purchaser's safety. On this principle, a mortgage for $3,000, in- 
correctly registered as being for $300, was held to be notice to a sub- 
sequent purchaser only for the smaller amount.' 

Where a mortgage was made to secure debts, one of " $30 or there- 
abouts," and another of " $40 or thereabouts," and the debts were 
$25.21 and $59.66 respectively, this was held sufficient to bind subse- 
quent purchasers." 

§ 477. Priority of unrecorded conveyances and mortgages 
over judgments. — An unrecorded conveyance or mortgage is prior 
to a judgment docketed subsequently to the time of its delivery.' 
It is obvious that this rule invites frauds and perjuries, and in some 
States statutes have been enacted to extend the benefits of the record- 
ing acts to judgment creditors." Not only is the judgment creditor 
deferred to the prior unrecorded mortgage or conveyance, but the 
purchaser at the sheriff's sale under the judgment takes his title sub- 
ject to all of the infirmities of the lien and subject to be cut down or 
defeated by unrecorded liens or grants." The rule is different in 
New Jersey ' and in Alabama.' 

An attaching creditor is not a purchaser in a sense that would give 
him priority over a grantee or mortgagee holding under a prior unre- 
corded deed.' 

I 478. Record is notice only when grantor's deed is also re- 
corded. — The recording acts do not declare what effect shall be given 



' Frost V. Beekman, i Johns. Ch. 288 ; * Clement's Ex'rs v. Bartlett, 33 N. J. 

s. c. afE'd 18 Johns. 544; Gilchrist v. Eq. 43; Bailey v. Timberlake, 74 Ala.221. 
Gough, 63 Ind. 576 ; Hill v. McNichol, * Clute v. Emmerich, 99 N. Y. 342, 

76 Me. 314 ; Stevens v. Batchelder, 28 350 ; Frost v. Yonkers Savings Bank, 

Me. 218 ; Lowry v. Smith, 97 Ind. 466 ; 70 N. Y. 553. 

State V. Davis, 96 Ind. 539 ; Ijames v. " Sharp v. Shea, 32 N. J. Eq. 65. 
Gaither, 93 N. C. 358. ' Bailey v. Timberlake, 74 Ala. 221. 

2 Booth v. Barnutn, 9 Conn. 286. ' Cowley v. McLoughlin, 141 Mass. 



Thomas v. Kelsey, 30 Barb. 268. 181. 



326 MOETGAGES OF BEAL PBOPERTT. [§ 478. 

to the recording of conveyances upon the point of notice. They de- 
clare that, unless recorded, they shall be void as against subsequent 
purchasers in good faith and for value whose conveyances are iirst 
recorded. The courts, by construction, make the record of a con- 
veyance notice to subsequent purchasers ; but this doctrine is sub- 
ject to the limitation that it is notice only to those claiming under 
the same grantor, or through one who is the common source of title.' 
One of the rules as to notice from the registry of conveyances is, that 
the registry of a conveyance of an equitable title is notice to a subse- 
quent purchaser of the same interest or title, from the same grantor, 
but that it is not notice to a purchaser of the legal title from a person 
who appears by the record to be the real owner.' 

Thus, where a copartnership firm purchased and paid for real estate 
to be used for the purposes of its business and took the legal title in 
the name of one of the partners, the record of a mortgage executed by 
one of the other members of the firm of all of his right, title, and 
interest in the property, was determined to be no notice to a pur- 
chaser from the partner holding the title. ° 

When the deed of a vendor is not recorded, the record of a mort- 
gage given by his vendee for the purchase money will not be notice 
to a subsequent purchaser.^ 

Where a deed and a mortgage to the grantor to secure part of the 
purchase money were executed simultaneously on February 28, and 
were recorded together on March 3 at noon, and another mortgage 
on the same premises to another person, also stating that it was given 
to secure part of the purchase money, was executed March 1, and was 
recorded March 3 shortly before noon, itVas held that the first mort- 
gage was entitled to priority, and that the record of the second mort- 
gage was not notice to the first mortgagee, the vendor, since at that 
time the vendee's deed had not been recorded." 



' Le Neve v. Le Neve, 2 L. C. in Eq. v. Bank of Kentucky, 4 J. J. Marsh, 

208, note ; Murray v. Ballou, i Johns. 558 ; Wiseman v. Westland, i Younge & 

Ch. 565 ; Stuyvesant v. Hall, 2 Barb. Jerv. 117 ; Bedford v. Backhouse, W. 

Ch. 151 ; Raynor V.Wilson, 6 Hill, 469; Kelynge, 5; Traphagen v. Irwin, 18 

Cook v. Travis, 20 N. Y. 400 ; Ligtner Neb. 195. 

V. Mooney, 10 Watts. 407 ; Leiby v. ^ pg^ Andrews, J., in Tarbell v. West, 

Wolf, 10 Ohio, 83 ; Bates v. Norcross, 86 N. Y. 280. 

14 Pick. 224 ; Whittington v. Wright, 9 a Tarbell v. West, 86 N. Y. 280. 

Ga. 23 ; Fenno v. Sayre, 3 Ala. (N. S.) "i Losey v. Simpson, 11 N. J. Eq. 

458 ; Losey v. Simpson, 3 Stockt. 246 ; 246. 

Truscott V. King, 6 Barb. 346 ; Halstead ' Boyd v. Mundorf, 30 N. J. Eq. 545. 



§ 479. J THE EECOEMNQ- ACTS, 337 

A sheriff's deed given in pursuance of a judgment and sale upon 
execution, is treated as if given by the judgment debtor himself. It 
conveys precisely what he could have conveyed when the judgment 
was docketed. The sheriff, by authority of law, takes his property 
and conveys it to satisfy hie debt, and the transfer of title is the same 
as if the sheriff had in fact acted as the authorized attorney of the 
debtor. The grantee in such a case holds, not under the sheriff, but 
under the debtor, and the deed, when recorded, is protected by, and 
has the benefit of, the recording act.' 

The fact that a mortgage is dated later than the time when it was 
recorded, does not give priority to another mortgage recorded after 
the record of the first, but before its date.^ 

A mortgage recorded but not delivered, and held by the mortgagor 
ready for dehvery when the loan to be secured by it is made, is not 
operative as against other liens until its dehvery," except in favor of 
ionajide purchasers of it.* 

A mortgage not recorded until after the death of the mortgagor is 
not for that reason inoperative as against the general creditors of the 
estate." 

A mortgage dated and recorded before the deed to the mortgagor 
is dated and recorded, is nevertheless notice to a purchaser from the 
mortgagor after the recording of his deed." But the record of the 
mortgage is not notice to a purchaser from the grantor of the mort- 
gagor until his deed is recorded.' 

§ 479. Notice of grantor's title. — While it is true as a general 
rule that a purchaser is not bound to search the records for incur - 
brances as against a title not appearing by the records, ° this is not a 
universal rule, and it is not applicable when the purchaser has act- 
ual notice of the existence of a mortgageable estate, in the person 



' Per Earl, J., in Hetzel V. Barber, 69 ^ Life Ins. Co. v. Rowand, 26 N. J. 

N. Y. I ; Jackson v. Chamberlain, 3 Eq. 389. 

Wend. 620 ; Jackson v. Post, 15 Wend. ^ Bailey v. Crim, 9 Bissell, 95. 

588, 596 ; Hooker v. Pierce, 2 Hill, 650 ; ' Gill v. Pinney's Adm'r, 12 Ohio St. 

Lessee of Cooper v. Galbraith, 3 Wash. 38. 

C. C. R. 546, 550 ; McKnight V. Gordon, "Semon v. Terhune, 40 N. J. Eq. 364, 

13 Rich. Eq. 222, 239. and note. 

^Jacobs V. Deni^on, 141 Mass. 117; 'Bingham v, Kirkland, 34 N.J. Eq. 

Parke v. Neeley,^go Pa. St. 52 ; Stone- 229. 

breaker v. Kerr, 40 Ind. 186 ; Partridge * Cook v. Travis, 20 N. Y. 402 ; Losey 

V. Swazey, 46 Mo. 412 ; Fowler v. Mer- v, Simpson, 3 Stockt. 246, 
rill, ri How. (U. S.) 375. 



328 MOETGAGES OF EEAL PBOPEKTT. [§§ 480-481. 

against whom the search is made, prior to the date of the evidence 
of such person's title to the absolute fee. So, where a person who was 
in possession of land under a parol contract of purchase, executed a 
mortgage which was recorded, it was held that, as against one who 
knew the nature of the interest of the mortgagor, such mortgage 
was constructive notice.' 

§ 480. Covenants of seizin and title. — A mortgage recorded be- 
fore the date of the mortgagor's title is not ordinarily -notice to a 
subsequent purchaser." If, however, the mortgage contains covenants 
of seizin and of title,' and the title is subsequently acqiiired by the 
mortgagor, he will not, in a court of justice, be heard to say that he 
had not title at the time it was executed, or that the title did not pass 
to the mortgagee. The doctrine is also well settled that the estoppel 
binds not only the parties, but all privies in estate, privies in blood, 
and privies in law ; and in such case, the title is treated as having 
been previously vested in the mortgagor, and as having passed imme- 
diately upon the execution of his mortgage by way of estoppel. A 
record, therefore, of the mortgage prior t6 the acquisition of title by 
the mortgagor, is in such a case, constructive notice to a subsequent 
purchaser in good faith.' 

§ 481. Extent to which records must be searched to insure 
safety. — If a conveyance be made for a valuable consideration and 
without notice to the grantee, either actual or constructive, of any 
other grant or incumbrance, the grantee will be protected as against 
all subsequently recorded transfers and Kens. This protection will 
also be extended to a purchaser from the grantee, and if such pur- 
chaser could know that the first transfer had been honaJulesxidL with- 
out actual notice, outside of the records, of any defect, he could ex- 
amine the records down to the date of the record of the conveyance 
to his grantor, and there stop. If, however, the conveyance from the 
original grantor had been without consideration, or if it had been re- 
ceived by the grantee when he had notice of an unrecorded convey- 
ance, which was afterward recorded, the innocent purchaser from such 
grantee would be bound by the subsequent record.* 

' Crane v. Turner, 7 Hun, 357, afB'd Co., 44 Barb. 239 ; i Story's Eq. Jur. 

67 N. Y. 437. §§ 396, 397. 

« Farmers' Loan & Trust Co. v. Malt- « Tefft v. Munson, 57 N. Y. 97 ; White 

by, 8 Paige, 361 ; N. Y. Life Ins. Co. v. v. Patten, 24 Pick. 324. 

White, 17 N. Y. 469; Cook v. Travis, * Jackson v. Post, 15 Wend. 588; Van 

20 N. Y. 400 ; Doyle v. Peerless Pet. Rensselaer v. Clark, 17 Wend. 25 ; Ring 



§ 482.] THE BECOEDING ACTS. 329 

Since a purchaser is charged with notice of all recorded instruments 
made by any person through whom the title passed, which contain 
covenants of warranty, even though they be recorded prior to the 
date of the conveyance to the persons by whom they are made, it is 
necessary, in order to insure absolute protection, that he should search 
the records from the time that each owner became of full age. And 
since some one of the conveyances through which he must trace title 
may have been without actual consideration, though a consideration 
be expressed, and since some one of the grantors may have had actual 
notice of an unrecorded instrument, he must also search for convey- 
ances and mortgages made by each and every of the grantors down 
to the time when he himself pays his consideration and records his 
deed. It is not the practice to make so thorough an examination of 
the records, and if made, it would, in our principal cities, impose an 
oppressive tax and expense upon real estate transfers.' As the law 
stands, it is believed by many conveyancers to constitute a dangerous 
trap fbr honest purchasers.' 



WHO PEOTECTED BY EECOEDING ACTS. 

§ 482. The recording acts only protect bona fide purchasers. — 

No person is protected by the recording acts who is not a " purchaser 
in good faith and for a valuable consideration." He must not only 
have received his deed without notice of the prior unrecordeH 
deed, but he must also have surrendered some security or valuable 
right." The receiving of the property as security for, or in pay- 
ment of, a precedent debt, when no security is surrendered or any- 
thing of value parted with, is not a purchase for a valuable considera- 
tion.' 

The extension of the time for the payment of a debt will make a 



V. Steele, 3 Keyes, 450 ; Goelet v. Mc- Westbrook v. Gleason, 79 N. Y. 23 ; 

Manus, i Hun, 306, affi'd by Court of Merriman v. Hyde, g Neb. 113. 

Appeals ; Schutt v. Large, 6 Barb. 373. ' Young v. Guy, 87 N. Y. 457, aiB'g s. 

See contra, Greene v. Deal, 4 Hun, 703, c. 23 Hun, i ; De Lancey v. Stearns, 66 

rev'd 64 N. Y. 220 ; Ledyard v. Butler, N. Y. 157. See as to a valuable consid- 

9 Paige, 132. ^ eration within the meaning of the re- 

' See Greene v. Deal, 4 Hun, 703, and cording acts, Dickerson v. Tillinghast, 4 

note. Paige, 215 ; Evertson v. Evertson, 5 Id. 

" Webster v. Van Steenbergh, 46 Barb. 644, and cases cited ; Weaver v. Barden, 

211 ; Lawrence v. Clark; 36 N. Y. 128 : 49 N. Y. 286. 



330 MOETGAGES OF REAL PEOPEETT. [§§ 483-484, 

mortgagee a purchaser for value.' But the mere taking of collateral 
security on time will not have this effect.'' 

Where an assignment of a mortgage was made in payment in part 
for a precedent debt and in part for value, the assignee was protected 
as against equities only to the extent of the money actually .paid on 
the faith of the security." 

A person who receives a conveyance and pays- nothing, but simply 
gives his bond and mortgage to secure the entire consideration paya- 
ble at a future day, is not a purchaser for a valuable consideration.'' 
But a person in the possession of lands under a contract of purchase, 
who has made payments under the contract, and has made valuable 
improvements upon the premises, and who takes a deed and surren- 
ders his equitable title, giving a purchase-money mortgage for the 
balance of the price, is a purchaser for value within the recording act, 
and is protected from a prior unrecorded mortgage.' 

An unrecorded grant or mortgage has a preference over a subse- 
quent general assignment." 

§ 483. Purchase from one having notice. — A lona fide pur- 
chaser who records his deed is protected by the recording acts from 
all unrecorded conveyances and mortgages of which he has no notice, 
even though his grantor may have had notice of them.' 

§ 484. Burden of proof. — A party claiming the beneiit of the 
recording act as a purchaser in good faith, has the burden of proving 
the payment of consideration." And a person seeking to charge 
another with notice, must prove that fact." 

A deed acknowledging the payment of the purchase money is 



' Durkee v. Nat. Bank of Fort Edward, * Westbrook v. Gleason, 79 N. Y. 

36 Hun, 565 ; Hale v. Omaha Nat. Bank, 23. 

39 N. Y. Supr. (7 J. & S.) 207 ; Weaver 'Westbrook v. Gleason, 89 N. Y. 

V. Barden, 49 N. Y. 286 ; Gilchrist v. 641. 

Couch, 19 Alb. L. J. 276 ; Schumber v. ^ Wyckoff v. Remsen, 11 Paige, 564 ; 

Dillard, 55 Miss. 348 ; Port v. Embree, Nice's Appeal, 54 Pa. St. 200. 

54 Iowa, 14 ; Jones v. Robinson, 77 Ala. ' Wood v. Chapin, 13 N. Y. 509 ; Fort 

499. V. Burch, 5 Denio, 187 ; Westbrook v. 

^ Gary v. White, 52 N. Y. 138, rev'g 7 Gleason, 79 N. Y. 23, 31 ; Decker v. 

Lans. I ; Lewis v. Anderson, 20 Ohio Boice, 83 N. Y. 215, 221 ; Varick v. 

St. 281. Briggs, 6 Paige, 323 

^French v. O'Brien, 52 How. 394; "Seymour v. McKinstry, 21 W. Dig. 

citing Weaver v. Barden, 49 N. Y. 286, 77 ; Withers v. Little, 56 Cal. 370. 

where this subject is elaborately dis- "Jackson v. Reid, 30 Kans. 10; Hos- 

cussed in two opinions, reaching differ- kins v. Carter, 66 Iowa, 638 ; Fort v. 

ent conclusions. Burch, 6 Barb. 5o. 



§§485-487.] THE EECOBDING ACTS. 831 

prima facie evidence that the grantee was a purchaser in good faith 
for a valuable consideration within the recording act.' 

§ 485. Subsequent purchasers alone protected.^-Where an 
administrator sold land, in ignorance of an unrecorded mortgage upon 
it, for the purpose of obtaining assets to pay creditors, under an order 
of the court, it was held that while the purchaser was protected under 
the recording acts, this did not relieve the administrator from the 
equitable charge of the mortgage lien, which was directed to be paid 
out of the proceeds of the land in preference to general creditors.^ 

Where a mortgagor, with the intent and purpose to defraud his 
mortgagee and defeat his lien, executes a junior mortgage and pro- 
cures it to be recorded prior to the recording of the prior mortgage, 
he is liable in damages to the holder of the first mortgage. The 
basis of the action is the dishonest purpose, the burden of proving 
which rests upon the plaintiff.^ 

§ 486. The recording acts protect only those who record 
their deeds. — It will also be noted that no one is protected by the 
recording acts, except a person " whose conveyance shall be first duly 
recorded." ' 

NOTICE AS AFFECTIBTG EECOEDING ACTS. 

§ 487. What actual notice is equivalent to a record. — The 

object of the recording acts is to protect the vigilant, by affording to 
every purchaser the means of ascertaining the condition of the title 
which he is about to purchase. An unrecorded deed is always good 
as against the grantor or his heirs, '^ and also as against all persons who 
take title from the grantor with actual notice of it.° 

The recording acts supply a means of giving notice, and all pur- 



' Lacustrine Fer. Co. v. L. G. & Fer. * Fort v. Burch, 5 Den. 187 ; Jackson 

Co., 82 N. Y. 476 ; Wood v. Chapin, 13 v. Van Valkenburgh, 8 Cow. 260 ; But- 

N. Y. (3 Kern.) 509 ; Jackson v. Mc- ler v. Viele, 44 Barb. 166 ; Thompson v. 

Chesney, 7 Cow. 360. Maxwell, 16 Fla. 773 ; Manufacturers' & 

^ Kirkpatrick v. Caldwell's Adm'r, 32 Mechanics' Bank v. Bank of Pennsyl- 

Ind. 299. vania, 7 Watts & Serg. (Pa.) 335 ; 42 

^ Graves v. Briggs, 6 Abb. N. C. 38. Am. Dec. 240 ; Kirkpatrick v. Ward, 5 

* Fort V. Burch, 5 Den. 187 ; West- Tenn. (B. J. Lea) 434 ; Hunt v. Hunt, 

brook V. Gleason, 79 N. Y. 23, rev'g s. 38 Mich i6i. In Ohio a purchaser for 

c. 14 Hun, 245. value has superior title to an unrecorded 

' Jackson v. Colden, 4 Cow. 266 ; mortgage of which he has notice. Do- 
Jackson V. West, 10 Johns. 466 ; Wood herty v. Stimmel, 40 Ohio St. 294 ; Bloom 
V. Chapin, 13 N. Y. (3 Kern.) 509. v. Noggle, 4 Ohio St. 55. 



332 MOETGAGES OF REAL PROrEKTY. [§ 488. 

chasers are bound to acquaint themselves with the facts which are 
spread upon the public records, but they cannot, by doing this, disre- 
gard all information which may reach them from other sources. The 
earlier cases, both in England and -in this country, favored the doc- 
trine that actual notice, in order to be a substitute for record notice, 
, must be more clear and distinct than would be required in the absence 
of a recording act,' but some later decisions disregard or repudiate 
the distinction. There is no foundation in reason for a rule which 
would require more evidence to establish a want of good faith under 
the recording acts than in any other case, and the authorities