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 .
75. National Investment Co. v. Nordin, 50 Minn. 336, 52 N. W. 899; Cock v. Bailey, 146 Pa. 328, 23 Atl. 370.
76. Post, Sec. 646, note 99.
77. See Senter v. Senter, 87 Ohio St. 377, 101 N. E. 272.
78. Simpson v. Hall, 47 Conn. 417; Coleman & Burden Co. v. Rice, 115 Ga. 510, 42 S. E. 5; Swatts v. Bowen, 141 Ind. 322, 40 N. E. 1057; Kilmer v. Hanni-fan, 113 Iowa, 281, 85 N. W. 16;
Scott Building & Loan Ass'n v. Palatine Ins. Co., 74 Kan. 272, 86 Pac. 142; Hayden v. Lauffenbur-ger, 157 Mo. 88, 57 S. W. 721; Gibbs v. Johnson, 104 Mich. 120, 62 N. W. 145; Curtis v. Moore, 152 N. Y. 159, 57 Am. St. Rep. 506, 46 N. E. 168; Burnet v. Den-nistown, 5 Johns. Ch. (N. Y.) 35; Gleason v. Carpenter, 74 Vt. 399, 52 Atl. 966. 79. Ante, Sec. 640(b).
In case a portion of the mortgaged land, or an undivided interest therein, is conveyed to the mortgage creditor, the debt will not ordinarily be merged, since it is to the latter's interest that it be kept alive in order that it may be enforced against the other portion of, or undivided interest in, the land.81 And in case there is no intention that the conveyance operate as a payment in part or in whole of the mortgage debt, and the conveyance cannot be regarded as "subject" to the mortgage, the mortgage may be enforced for the full amount of the debt against the other portion of the land, still remaining in the hands of the grantor or subsequently conveyed by him to another.82 But a conveyance of a part of the mortgaged land to the mortgage creditor ordinarily extinguishes a proportionate part of the debt in favor of a grantee of another part, since otherwise the whole burden of the debt might fall upon such other part.83
In Dickason v. Williams, 129 Mass. 182, a grantee of the land assumed the mortgage debt and thereafter conveyed to the mortgage creditor, "subject to" the mortgage, "which mortgage forms part of the" consideration named, and it was held that this "operated as a payment of the mortgage debt, by a party legally bound to pay it to a party entitled to receive it." And see National Investment Co. v. Nordin, 50 Minn. 336, 52 N. W. 899. In Fitch v. Applegate, 24 Wash. 25, 64 Pac. 147, it appears to be assumed by the court that the conveyance of the land to the mortgage creditor was in payment of the mortgage debt, and yet it was held that the mortgage was not extinguished in favor of a junior lienor.
80. But there may be a conveyance in consideration of the release of the debtor from personal liability without the payment of the debt. Coburn v. Stephens, 137
Ind. 683, 45 Am. St. Rep. 218, 36 N. E. 132; Young v. Hill, 31 N. J. Eq. 429; James v. Williams, 102 Kan. 231, 169 Pac. 1163.
81. Cole v. Beale, 89 111. App. 426; Haggerty v. Byrne, 75 Ind. 499; Sahler v. Signer, 44 Barb. (N. Y.) 606; Thebaud v. Hollis-ter, 37 N. J. Eq. 402; Souther v. Pearson, - (N. J. Eq.) -, 28 Atl. 450. There are occasional suggestions that there cannot possibly be any merger in such case. Chase v. Van Meter, 140 Ind. 321, 39 N. E. 455; Klock v. Cronkhite, 1 Hill (N. Y.) 107. This seems questionable. In South Carolina it has been decided that the acquisition by the mortgagee of a part of the mortgaged land does not of itself discharge the debt to a greater extent than the value of such part. Trimmier v. Vise, 17 S. Car. 499, 43 Am. Rep. 624; Ex Parte Powell, 68 S. C. 324, 47 S. E. 440.
A conveyance of the mortgaged land to one who has but a share in the debt secured can evidently not effect a merger so far as concerns the other share in the debt.84 Whether his share in the debt is merged appears to be, as in other cases, a question to be determined by reference to his intention and interest,85 except when he actually assumes the payment of the debt.86
- Subsequent purchasers. Since the question whether the mortgage debt has been merged, so as to extinguish it, with its incidental lien, is ordinarily to be determined with reference to the intention or interest of the person in whom the debt and the land have come together, it would seem that a subsequent purchaser of land has no right to assume that a mortgage, which appears on the records as unsatisfied or unreleased, is no longer an existing incumbrance, merely because the mortgage debt and the land have belonged, at one time, to the same person. And there are decisions to that effect.87 Conceding this to be so, it is necessarily immaterial that, by reason of the failure to record an assignment of the debt and mortgage, the subsequent purchaser of the land is misled into thinking that the assignor still owned the debt and mortgage at the time of his subsequent acquisition of the land.88 There are, however, decisions to a contrary effect, that a purchaser of the land has a right to presume a merger of the mortgage debt by reason of its acquisition by the owner of the land, or of the acquisition of the land by the owner of the debt, in the absence of any notice on his part of matters indicating that no merger did actually take place.89 And some of these decisions are to the effect that a purchaser of the land has a right to assume that the debt, with its lien, has been merged, if by reason of the failure to record an assignment of the debt and mortgage by one who subsequently acquired the land, he appears on the records to have owned both interests simultaneously,90 provided at least such purchaser makes reasonable inquiry to ascertain that the mortgage is no longer outstanding.91 But even in jurisdictions where otherwise a subsequent purchaser
82. Smith v. Roberts, 91 N. Y. 470. In this case there was a purchase by the mortgagee of part of the land, and this was paid for irrespective of the mortgage, i. e., he did not take it "subject to" the mortgage. See Sanford v. Van Arsdall, 53 Hun (N. Y.) 70, 6 N. Y. Supp. 494.
83. Martin v. Turnabaugh, 153 Mo. 172, 54 S. W. 515; Brooks v. Benham, 70 Conn. 92, 66 Am. St. Rep. 87, 38 Atl. 908, 39 Atl. 1112; Meacham v. Steele, 93 111. 135.