127. A mortgagee may assign his interest, or part of it, on the following conditions:
(a) It must be by deed.
(b) The mortgage debt must accompany the mortgage.
(c) The assignee takes the mortgage subject to the same equities as he takes the mortgage debt, and no other.
128. On the death of the mortgagee before foreclosure, his interest goes to his personal representative.
129. Before foreclosure the mortgagee's interest is not subject to attachment or sale on execution.
The mortgagee may assign the mortgage,219 and so may his executor or administrator.220 An assignment must be by deed,221
214 Dunning v. Bank, 61 N. Y. 497; Fliess v. Buckley, 22 Hun (N. Y.) 551.
215 Atkins v. Sawyer, 1 Pick. (Mass.) 351; Fitch v. Pinckard, 5 111. 69. And Bee Bernstein v. Humes, 71 Ala. 260.
216 Gushing v. Hurd, 4 Pick. (Mass.) 253; Seaman v. Hax, 14 Colo. 536, 24 Pac. 461.
217 Young v. Ruth, 55 Mo. 515; Goring's Ex'x v. Shreve, 7 Dana (Ky.) 64; Tice v. Annin, 2 Johns Ch. (N. Y.) 125; Washburn v. Goodwin, 17 Pick. (Mass.) 137. Contra, Cottingham v. Springer, 88 111. 90.
218 Clinton Nat. Bank v. Manwarring, 39 Iowa, 281; Turner v. Watkins, 31 Ark. 429. But see Gibson v. Hough, 60 Ga. 588; Phinizy v. Clark, 62 Ga. 623.
219 A mortgage of indemnity cannot be assigned until the mortgagee has paid the debt. Abbott v. Upton, 19 Pick. (Mass.) 434; Wallace v. Goodall, 18 N. H. 439; Jones v. Bank, 29 Conn. 25. Contra, Carper v. Munger, 62 Ind. 481; Murray v. Porter, 26 Neb. 288, 41 N. W. 1111.
220 Ex parte Blair, 13 Metc. (Mass.) 126; Ladd v. Wiggin, 35 N. H. 421; Crooker v. Jewell, 31 Me. 306.
221 Warden v. Adams, 15 Mass. 233; Torrey v. Deavitt, 53 Vt 331. But see Kinna v. Smith, 3 N. J. Eq. 14.
Real prop.-14 and an assignment indorsed on the mortgage deed would not be operative at law.222 An assignee of the mortgage takes the mortgagee's interest,223 and he can foreclose in his own name.224 After an assignment, an agreement by the mortgagor and mortgagee cannot affect the assignee's rights, provided the mortgagor has had notice of the assignment225 There may be an assignment of part of a mortgage.226 If the mortgage is assigned without a transfer of the mortgage debt, the assignee takes only the legal title. He holds as a trustee for the protection of the mortgage debt, when that is held by another than the mortgagee.227 But, if the mortgage debt has not been transferred by the mortgagee, some courts hold that it passes to the assignee by the transfer of the mortgage.228
An assignment of the mortgage debt carries with it the benefit
222 Adams v. Parker, 12 Gray (Mass.) 53. A mere delivery of the mortgage deed, unaccompanied by the note secured, is not an assignment. Bow-its v. Johnson, 49 N. Y. 432; Merritt v. Bartholick, 36 N. Y. 44.
223 Anderson v. Bank, 98 Mich. 543, 57 N. W. 808; Harrison v. Yerby (Ala.) 14 South. 321; Hunt v. Mortgage Security Co., 92 Ga. 720, 19 S. E. 27. Cf. Gray v. Waldron, 101 Mich. 612, 60 N. W. 288; Geiger v. Peterson, 164 Pa. St. 352, 30 Atl. 262.
224 Irish v. Sharp, 89 111. 261.
225 Black v. Reno, 59 Fed. 917; Whipple v. Fowler, 41 Neb. 675, 60 N. W. 15; Parker v. Randolph, 5 S. D. 549, 59 N. W. 722. And see Cutler v. Clem-entson, 67 Fed. 409.
226 Union Mut Life Ins. Co. v. Slee, 123 111. 57, 12 N. B. 543; Mcsorley v. Larissa, 100 Mass. 270; Wyman v. Hooper, 2 Gray (Mass.) 141. So part of the mortgage debt may be assigned, and with it all of the mortgage. Lang-don v. Keith, 9 Vt. 299. In several states where notes secured by a mortgage are assigned successively, the one first due has the first right to the mortgage security. Horn v. Bennett, 135 Ind. 158, 34 N. E. 956; Stanley v. Beatty, 4 Ind. 134; Grapengether v. Fejervary, 9 Iowa, 163; Wood v. Trask, 7 Wis. 566. Contra, Cullum v. Erwin, 4 Ala. 452; State Bank v. Mathews, 45 Neb. 659, 63 N. W. 930; Bartlett v. Wade, 66 Vt. 629, 30 Atl. 4; First Nat. Bank v. Andrews, 7 Wash. 261, 34 Pac. 913.
227 Bailey v. Gould, Walk. (Mich.) 478; Merritt v. Bartholick, 36 N. Y. 44; Aymar v. Bill, 5 Johns. Ch. (N. Y.) 570; Swan v. Yaple, 35 Iowa, 248; Peters v. Bridge Co., 5 Cal. 335; Johnson v. Cornett, 29 Ind. 59; Thayer v. Campbell, 9 Mo. 280.
228 Philips v. Bank, 18 Pa. St. 394. But see Fletcher v. Carpenter, 37 Mich. 412. And cf. Johnson v. Clarke (N. J. Ch.) 28 Atl. 558; State Bank v. Mathews, 45 Neb. 659, 63 N. W. 930.
Of the mortgage,229 and, when a debt secured by a trust deed is assigned, the trustee holds for the benefit of the assignee.230 A mortgagee may set up an after-acquired title against his assignee, unless his assignment was with covenants of warranty.231 And he may show that his assignment, though absolute in form, was for security only.232 An assignment of the mortgage carries with it all other securities which the mortgagee has for the same debt.233 An assignment raises no implied warranty as to the solvency of the mortgagor, but it does create a warranty that the mortgage debt has not been paid.234 An assignee of a mortgage and the note which it secures takes the mortgage free from all equities of which he has no notice, because the note itself, which is the principal thing, is free from such equities.235 But when the note is overdue, or is nonnegotiable, the mortgage is subject, in the hands of the assignee, to all the equities which existed between the original parties before notice of assignment to the mortgagor,236 and the rule is the same when the mortgage is given without a mortgage note.237
If the mortgagee dies before foreclosure, his interest goes to his.
229 Larned v. Donovan, 31 Abb. N. C. 308, 29 N. Y. Supp. 825; Jenkins v, Wilkinson, 113 N. C. 532, 18 S. E. 696; Gumbel v. Boyer, 46 La. Ann. 762, 15 South. 84; Longfellow v. Mcgregor (Minn.) 63 N. W. 1032. But see Fitcb v. Mcdowell, 145 N. Y. 498, 40 N. E. 205.
230 Thomas v. Linn (W. Va.) 20 S. E. 878; Clark v. Jones, 93 Tenn. 639, 27 S. W. 1009.
231 Weed Sewing Mach. Co. v. Emerson, 115 Mass. 554.
232 pond v. Eddy, 113 Mass. 149.
233 Philips v. Bank, 18 Pa. St. 394. But see Smith v. Starr, 4 Hun (N. Y.) 123.
234 1 Jones, Mortg. (5th Ed.) § 831; French v. Turner, 15 Ind. 59.
235 Dutton v. Ives, 5 Mich. 515; Jones v. Smith, 22 Mich. 360; Taylor v. Page, 6 Allen (Mass.) 86; Kenicott v. Supervisors, 16 Wall. 452; Preston v. Case, 42 Iowa, 549; Farmers' Nat Bank v. Fletcher, 44 Iowa, 252; Swett v. Stark, 31 Fed. 858; Barnum v. Phenix, 60 Mich. 388, 27 N. W. 577; Helmer v. Krolick, 36 Mich. 371; Gould v. Marsh, 1 Hun (N. Y.) 566; Lewis v. Kirk, 28 Kan. 497. Contra, Scott v. Magloughlin, 133 111. 33, 24 N. E. 1030.
236 Mckenna v. Kirkwood, 50 Mich. 544, 15 N. W. 898; Fish v. French, 15 Gray (Mass.) 520; Owen v. Evans, 134 N. Y. 514, 31 N. E. 999. That in New York he takes it subject also to latent equities in favor of third persons, see Bush v. Lathrop, 22 N. Y. 535.
237 Corbett v. Woodward, 5 Sawy. 403, Fed. Cas. No. 3,223.
Personal representative,and it may be assigned or otherwise disposed of by the latter without an order of the court.238 The heirs of the mortgagee cannot sell the mortgage, nor can they foreclose it.239 Unless the mortgagee has acquired the mortgaged premises under a strict foreclosure, or has bid them in at a foreclosure sale, he has no interest which is subject to attachment, or to a sale on execution. The same is true of a beneficiary under a deed of trust.240 This is because the mortgage is a mere incident to the mortgage debt The creditor's remedy is against the mortgage debt, which is the principal thing.