This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If A buys mortgaged realty from the mortgagor B, payments made by A upon the mortgage debt will prevent limitations from operating as a bar to the foreclosure of the mortgage,1 whether A has2 or has not3 assumed and agreed to pay the mortgage debt. Whether payments made under such circumstances by A will prevent limitations from running against B's personal liability is a different question. The weight of authority is that payments made by A have no effect upon the running of the statute against B's liability on the debt,4 even if A has assumed and agreed to pay the mortgage debt.5 Some authorities hold, however, that if A has covenanted to pay the mortgage debt, payments by A will keep the mortgage debt alive as to B, the original debtor.6 If the mortgage debt has become barred by limitations, B, the original mortgagor, cannot revive the lien of the mortgage as against A, his grantee, by making a payment upon the mortgage debt after such conveyance.7 So where mortgaged premises are sold under execution on a judgment against the mortgagor, a part payment made by the mortgagor upon the mortgage debt will not stop the running of the statute of limitations against the mortgage in favor of the purchaser at such execution sale.8 Payment upon a mortgage debt, made by the grantee of part of the premises to protect his interest, does not waive the bar of the statute as to the owners of the residue of the premises ;9 nor does such payment waive the bar of the statute as to the grantee of part of the premises if made by a grantee of the rest of the premises who has covenanted to pay the mortgage debt.10 If the mortgage debt is not barred when the mortgagor conveys the premises, payments thereon made by the mortgagor after the conveyance do not start limitations to running afresh as to the lien of the mortgage.11 As to the lien of the mortgage, limitations runs from the date of the last payment made by the mortgagor before he conveys the realty.12 Under some authorities which treat lapse of time in enforcing a mortgage as merely raising a presumption of payment, payment by anyone interested in either the debt or the equity of redemption is sufficient to rebut the presumption of payment. Thus payment by the mortgagor after he has conveyed the mortgaged premises to another is sufficient to rebut such presumption as in favor of his grantee,13 and payment by one interested in the equity of redemption repels such presumption as to others interested therein.14
14 State v. Finn, 98 Mo. 532; 14 Am. St. Rep. 654; 11 S. W. 994.
1 Colton v. Depew, 60 N. J. Eq. 454; 83 Am. St. Rep. 650; 46 Atl. 728.
2 Murray v. Emery, 187 111. 408; 58 N. E. 327; Harts v. Emery, 184 111. 560; 56 N. E. 865.
3 McLane v. Allison, 60 Kan. 441; 56 Pac. 747.
4 Trustees of the Alms House Farm v. Smith, 52 Conn. 434; Home Life Ins. Co. v. Elwell. Ill Mich. 689; 70 N. W. 334.
5 Cottrell v. Shepherd, 86 Wis. 649; 39 Am. St. Rep. 919; 57 N. W. 983.
6 Biddle v. Pugh, 59 N. J. Eq. 480; 45 Atl. 626.
7 Day v. Baldwin, 34 la. 380; Schumaeker v. Sibert. 18 Kan. 104; 26 Am. Rep. 765; Mack v. Anderson, 165 N. Y. 529; 59 N. E. 289: Damon v. Leque. 17 Wash. 573; 61 Am. St. Rep. 927; 50 Pac. 485.
8 Raymond v. Bales, 26 Wash 493; 67 Pac. 269.