This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
47 Minn. 103, 49 N. W. 526; Wood v. Johnson, 117 Minn. 267, 135 N. W. 746; Fry v. Ausman, 29 S. D. 30, 39 L. R. A. (N. S.) 150, Ann. Cas. 1914C, 842, 135 N. W. 708. See Kramer v. Gardner, 104 Minn. 370, 116 N. W. 925; Clement v. Willett, 105 Minn. 267, 17 L. R. A. (N. S.) 1094, 117 N. W. 491. 85. Vrooman v. Turner, 69 N.
Y. 280; Carter v. Holahan, 92 N. Y. 498, 504. young Men's Christian Ass'n of Portland v. Croft, 34 Ore. 106, 75 Am. St. Rep. 568, 55 Pac. 439, is to the same effect.
86. King v. Whitley, 10 Paige (N. Y.) 465; Potter v. Hughes, 12 N. Y. 74. See 15 Harv. Law Rev. 781.
86a. See 15 Harv. Law Rev. 701.
87. Rapallo, J., in Garnsey v. Rogers, 47 N. Y. 233.
88. Garnsey v. Rogers, 47 N. Y. 233, 7 Am. Rep. 440; Pardee v Treat, 82 N. Y. 385. But in Bas-sett v. Bradley, 48 Conn. 234, it was held that if the mortgagor assigned to the first mortgagee the benefit of the second mortgagee's promise, the first mortgagee could sue the second mortgagee thereon, and a judgment for the amount of the prior mortgage was upheld.
89. Merriman v. Schmitt, 211 111. 263, 71 N. E. 986; Roe v. Barker, 82 N. Y. 431; Cole v. Cole. 110 N. Y. 630, 17 N. E. 682. See Arnaud v. Grigg, 29 N. J. Eq. 482.
90. Gaffney v. Hicks, 131 Mass. 124.
91. Ante, Sec. 606, notes 69, 70.
Successive transfers. In case the mortgaged land is retransferred by the mortgagor's transferee, and so passes in succession to two or more persons, and each successive transferee agrees to pay the mortgage debt, each and every one of them is liable, as was the original transferee, and on the same principle, directly to the mortgage creditor.93
Defenses. The transferee may assert in defense as against the mortgagee as well as against the transferor, with whom the agreement was made, that the agreement was the result of fraud or mistake.84 On whichever theory the transferee's liability is based, there is no reason why the mortgagee, who has paid nothing to secure the agreement, should be allowed to enforce it when lacking the reality of consent necessary to its enforcement by the promisee.95
As to the power of the transferor to release or discharge the transferee from his contract of assumption, and so preclude the enforcement thereof by the mortgage creditor, the cases are not in accord. Perhaps the weight of authority is in favor of the view that the transferor can so discharge the transferee from liability provided he does so before the mortgage creditor has
92. See Jewett v. Draper, 6 Allen (Mass.) 434.
93. Flint v. Cadenasso, 64 Cal. 83, 28 Pac. 62; Webster v. Fleming, 178 111. 140, 52 N. E. 975; Carnahan v. Tousey, 93 Ind. 561; Reed v. Paul, 131 Mass. 129; Corning v. Burton, 102 Mich. 86, 62 N. W. 1040; Kollen v. Sooy, 172 Mich. 214, 137 N. W. 808; Hyde v. Miller, 45 N. Y. App. Div. 396 60 N. Y. Supp. 974, 168 N. Y. 590 60 N. E. 1113; Baber v. Hanie, 163 N. C. 588, 80 S. E. 57.
94. Drury v. Hayden, 111 U. S. 223, 28 L. Ed. 408; Johns v. Wilson, 6 Ariz. 125, 53 Pac. 583; Starbird v. Cranston, 24 Colo. 20, 48 Pac. 652; Fuller v. Lamar, 5S Iowa, 477, 5 N. W. 606; Bogart v. Phillips, 112 Mich. 697, 71 N. W. 320; Clifford v. Minor, 76 Minn. 12, 78 N. W. 861; Saunders v. McClintock, 46 Mo. App. 216; Dey Ermand v. Chamberlin, 88 N. Y. 658.
95. See 15 Harv. Law Rev. 797.
3 R. P.- 15 in some way shown a desire to accept the benefit of the agreement.96 There are also to be found decisions that the transferor can release the transferee from his agreement at any time, without reference to whether the benefit thereof has been accepted by the mortgagee,97 provided at least the release is given in good faith and for a valuable consideration,98 and before the commencement of foreclosure proceedings.99 Occasionally, on the other hand, it has been decided that upon the making of the agreement a right of action vests immediately in the mortgage creditor, irrespective of the latter's acceptance of the benefit of the agreement, which right cannot be divested by any subsequent action on the part of the transferor.1 It has been well suggested,2 that if the right of action is to be regarded as based on the principle of subrogation, the mortgage creditor acquiring no right directly by reason of the agreement, but having, as the transferor's creditor, merely a right to avail himself of the benefit of the agreement made with the transferor, as constituting in effect an asset belonging to the latter, there appears to be no reason why a discharge by the transferor should not be effective as against the mortgage creditor, provided it is given in good faith and for a valuable consideration, in other words, provided it does not constitute a disposition by the transferor of a part of his assets in fraud of a creditor.3 If, on the other hand, the right of action in the mortgage creditor is based on the theory that a third person is entitled to sue at law upon a contract to which he is not a party, as being an intended beneficiary ihereof, it would seem that the benefit thereof should be regarded as vesting in him immediately, subject to the possibility of future disaffirmance by him,4 and that this benefit, with its incidental right of action, cannot be divested by any subsequent act on the part of the transferor.5
96. Gilbert v. Sanderson, 56 Iowa, 349, 41 Am. Rep. 103, 9 N. W. 293; Jones v. Higgins, 80 Ky. 409; Field v. Thistle, 58 N. J. Eq. 339, 43 Atl. 1072; Gifford U. Corrigan, 117 N. Y. 257, 6 L. R. A. 610, 15 Am. St. Rep. 508, 22 N. E. 756; Clark v. Fisk, 9 Utah, 94, 33 Pac. 248; Willard v. Worsham, 76 Va. 392. See Huffman v. Western Mortgage & Investment Co., 13 Tex. Civ. App. 169, 36 S. W. 306; Hoeldtke v. Horstman, 61 Tex. Civ. App. 148, 128 S. W. 642; Trimble v. Strother, 25 Ohio St. 378.
97. Biddel v. Brizolara, 64 Cal. 354, 30 Pac. 609.
98. O'Neill v. Clark, 33 N. J.
99. Crowell v. Hospital of St. Barnabas, 27 N. J. Eq. 650; Field v. Thistle, 58 N. J. Eq. 339, 43 Atl. 1072.