A mortgage being an estate on condition subsequent, the mortgagee's estate is defeated by the performance of the condition named in the defeasance. Performance usually requires the payment of money, but the condition may require other acts as the support of the mortgage. Payment363 at the time mentioned in the defeasance dis1 S. W. 142; Bamberger v. Geiser, 24 Or. 203, 33 Pac. 609. And cf. Roberts v. Halstead, 9 Pa. St. 32.
360 Ferguson v. Glassford, 68 Mich. 36, 35 N. W. 820; Girardin v. Lampe, 58 Wis. 267, 16 N. W. 614; Van Keuren v. Corkins, 66 N. Y. 77; Bacon v. Van Schoonhoven, 87 N. Y. 416; Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373, 14 N. E. 586.
361 Crumlish v. Railroad Co., 32 W. Va. 244, 9 S. E. 180.
Crawford v. Simon, 159 Pa. St. 585, 28 Atl. 491; Woodruff v. Mutschler, 34 N. J. Eq. 33.
363 For payment as a discharge, see Clark, Cont, p. 629.
Charges the mortgage;364 that is, the mortgagor defeats the mortgagee's estate on condition by performance of the condition, and the title to the mortgaged premises revests in the mortgagor without a reconveyance.365 Payment before the day on which the debt falls due cannot be enforced by either party,366 but, if the mortgagee accepts such payment, it will operate as a discharge of the mortgage.367 Payment after the day mentioned in the condition-that is, after the breach of condition-does not divest the estate of the mortgagee, and, if the mortgagee will not reconvey voluntarily, the mortgagor must resort to equity to secure a reconveyance.368 But, in those states where the lien theory prevails, if the mortgagee accept payment after breach of condition, he is held to waive breach of performance, and the title revests in the mortgagor without a reconveyance.369 A discharge of the mortgage debt discharges the mortgage,370 but a discharge by bankruptcy, or by the statute of limitations, does not.371
When the mortgagor is holder of the mortgage as administrator of the mortgagee, he may discharge the mortgage at any time by
364 Mccarn v. Wilcox (Mich.) 63 N. W. 978; Gage v. Mcdermid, 150 111. 59S, 37 N. E. 102G; Kingsley v. Purdom, 53 Kan. 56, 35 Pac. 811. Cf. Greensburg Fuel Co. v. Irwin Nat. Gas Co., 162 Pa. St. 78, 29 Atl. 274; Bartlett v. Wade, 66 Vt. 629, 30 Atl. 4. But see Sturges v. Hart, 84 Hun, 409, 32 N. Y. Supp. 422; Herber v. Thompson, 47 La. Ann. 800, 17 South. 318. As to application of payments, see Clark, Cont. p. 634; Fetter, Eq. p. 249.
365 Holman v. Bailey, 3 Mete. (Mass.) 55; Crain v. Mcgoon, 86 111. 431. So, in a mortgage for support, if the condition is performed up to the death of the mortgagee the title revests in the mortgagor. Munson v. Munson, 30 Conn. 42.1.
366 Weldon v. Tollman, 15 C. C. A. 138, 67 Fed. 986; Bowen v. Julius, 141 Ind. 310, 40 N. E. 700; Moore v. Kime, 43 Neb. 517, 61 N. W. 736.
367 1 Jones, Mortg. (5th Ed.) § 888.
368 Currier v. Gale, 9 Allen (Mass.) 522; Doton v. Russell, 17 Conn. 146.
369 Caruthers v. Humphrey, 12 Mich. 270; Mcnair v. Picotte, 33 Mo. 57; Kortright v. Cady, 21 N. Y. 343; Shields v. Lozear, 34 N. J. Law, 496.
370 Sherman v. Sherman, 3 Ind. 337; Shields v. Lozear, 34 N. J. Law, 496. 371 Chamberlain v. Meeder, 16 N. H. 381; Bush v. Cooper, 26 Miss. 599.
Foreclosure is not payment, and does not discharge the mortgage debt. See post, p. 241 But the parties may agree that It shall constitute a discharge. Shepherd v. May, 115 U. S. 505, 6 Sup. Ct 119; Renwick v. Wheeler, 48 Fed. 431; Vansant v. Allmon, 23 111. 30; Germania Bldg. Ass'n v. Neill, 93 Pa. St 322.
Charging the amount thereof to himself on his probate account,372 and a subsequent assignment would transfer no title to the assignee.373 A change in the form of a mortgage debt, such as the substitution of a new note in the place of the original note, does not effect a discharge.374 Nor does the merger of the mortgage note in a judgment produce that result.375 So there is no discharge by taking further security for the mortgage debt.376 Extending the time of payment does not discharge the mortgage as to subsequent mortgagees.377 But it is otherwise where the mortgage is to secure the debt of another, unless the mortgagor consents to the extension.378 A release of part of the mortgaged premises does not discharge the mortgage as to the other part3,379 unless it would injuriously affect subsequent mortgages, of which the first mortgagee had notice.380 On the other hand, the personal liability of the mortgagor may be released without discharging the mortgage, if there is no intention to discharge the debt.381 After a mortgage has been discharged, it cannot be revived so as to take precedence over intervening incumbrances;382 that is, the mortgage cannot be continued as security for another debt, to the detriment of subsequent creditors or purchasers.383 But when the discharge of a mortgage has been obtained by fraud or mistake, it may be set aside unless third persons, without notice, whose rights have intervened since the discharge, would be injuriously affected.384
372 Martin v. Smith, 124 Mass. 111. But see Soverhill v. Suydam, 59 N. Y. 140; Kinney v. Ensign, 18 Pick. (Mass.) 232; Crow v. Conant, 90 Mich. 247, 61 N. W. 450.
373 Ipswich Manuf'g Co. v. Story, 5 Mete. (Mass.) 310.
374 Flower v. Elwood, 66 111. 438; Watkins v. Hill, 8 Pick. (Mass.) 522; Williams v. Starr, 5 Wis. 534; Gregory v. Thomas, 20 Wend. (N. Y.) 17; Geib v. Reynolds, 35 Minn. 321, 28 N. W. 923; Swan v. Yaple, 35 Iowa, 248; Walters t. Walters, 73 lad. 425.
375 Priest v. Wheelock, 58 111. 114; Torrey v. Cook, 116 Mass. 163; Ely v. Ely, 6 Gray (Mass.) 439; Morrison v. Morrison, 38 Iowa, 73.
376 Gregory v. Thomas, 20 Wend. (N. Y.) 17; Flower v. Elwood, 66 111. 438; Cissna v. Haines, 18 Ind. 496; Hutchinson v. Swartsweller, 31 N. J. Eq. 205.
377 Bank of Utica v. Finch, 3 Barb. Ch. (N. Y.) 293; Whittacre v. Fuller, 5 Minn. 508 (Gil. 401); Cleveland v. Martin, 2 Head (Tenn.) 128; Naltner v. Tappey, 55 Ind. 107.
378 Smith v. Townsend, 25 N. Y. 479; Metz v. Todd, 36 Mich. 473; Christner v. Brown, 16 Iowa, 130.
379 Patty v. Pease, 8 Paige (N. Y.) 277.
380 Stewart v. Mcmahan, 94 Ind. 389.
381 Hayden v. Smith, 12 Mete. (Mass.) 511; Donnelly v. Simonton, 13 Minn. 301 (Gil. 278); Walls v. Baird, 91 Ind. 429.
382 Bogert v. Striker, 11 Misc. Rep. 88, 32 N. Y. Supp. 815; Mitchell v. Coombs, 96 Pa. St 430; Lindsay v. Garvin, 31 S. C. 259, 9 S. E. 862.