96. See Austin v. Steele, 68 Ark. 348, 58 S. W. 352; London & S. F. Bank v. Bandmann, 120 Cal. 220, 65 Am. St. Rep. 179, 52 Pac. 583; Bumgardner v. Wealand, 197 Mo. 433, 95 S. W. 211; Haggart v. Wilczinski, 143 Fed. 22, 74 C. C. A. 176 (Mississippi).

97. See e. g., 16 Harv. Law Rev. at p. 445.

Material. Even though he has the legal title, he cannot utilize it for the purpose of foreclosure, or otherwise, after the debt has been extinguished, and conversely, although he has not the legal title, he may enforce the lien even after his personal remedy against the mortgagor is barred, provided only the debt secured can be regarded as still existent.

- (g) Recovery of personal judgment. The recovery of a judgment in a court of record has the effect of merging the original cause of action in the judgment, but it does not extinguish any remedy except the particular cause of action in respect to which the judgment was recovered, and. the creditor may still enforce any collateral security which he may have taken.98-99 Consequently, the recovery of a personal judgment on a debt secured by mortgage, though it precludes any subsequent action on the debt against the debtor personally, does not affect the right to enforce the mortgage security, that is, it does not cause an extinguishment of the mortgage.1

-(h) Change in note or bond. Conceding, as has been stated,2 that the mortgage operates as security for the debt as it existed or was created at the time of the execution of the mortgage instrument, and that the promissory note or bond usually given for the amount of the debt is merely evidence of the debt, or at most collateral security for the payment of the debt, it would follow that a change in such evidence or collateral security would not affect the debt itself or the mortgage securing the debt. In accordance with this view are numerous decisions that the substitution of another note for that originally given, whether for the purpose of renewal or otherwise, does not affect the existence of the debt for which the mortgage stands as security, nor of the mortgage itself, in the absence of evidence of an intention that it should have that effect.3 That is, as sometimes expressed, a mere change in the evidence of the debt secured by the mortgage does not affect the debt or the security.4 And this is the case even in states in which the presumption ordinarily obtains that a negotiable note given for a preexisting debt was intended to extinguish the debt, such presumption not being recognized when the effect thereof would be to deprive the creditor of the benefit of a mortgage or other security.5

98-99. Drake v. Mitchell, 3 East 251; Wegg Prosser v. Evans (1895), 1 Q. B. 108.

1. Priest v. Wheelock, 58 111. 114; Darst v. Bates, 95 111. 493; Applegate v. Wilson, 13 Ind. 75: Jordan v. Smith, 30 Iowa, 500; Freeburg v. Eksell, 123 Iowa, 464, 99 N. W. 118; Rossiter v. Merriman, 80 Kan. 739, 104 Pac. 858; Jewett v. Hamlin, 68 Me. 172; Perkins v. Pitts, 11 Mass. 125; Fisher v. Fisher, 98 Mass. 303; Torrey v. Cook, 116 Mass. 163; Hanna v. Kasson, 26 Wash. 568, 67 Pac. 271.

2. Ante, Sec. 607(c), notes 95 98a.

3. Cullum v. Branch Bank at Mobile, 23 Ala. 797; Lent v. Morrill, 25 Cal. 492; Newhall v. Hatch, 134 Cal. 269, 55 L. R. A. 673, 66 Pac. 266; Bolles v. Chauncy, 3 Conn. 389; Flower v. Elwood, 66 111. 446; Stein v. Kann, 244 111. 32, 91 N. E. 77; Dumell v. Ters-tegge, 23 Ind. 397, 85 Am. Dec. 466; Sloan v. Rice, 41 Iowa, 465; Bourne v. Littlefield, 29 Me. 302; Buck v. Wood, 85 Me. 204, 27 Atl. 103; Pomroy v. Rice, 16 Pick. (Mass.) 22; Jenkins v. Andover Theological Seminary, 205 Mass. 376, 91 N. E. 552; Boxheimer v. Gunn, 24 Mich. 372 ; Heard v. Evans, 1 Freem. Ch. (Miss.) 79; Wilson v. Pickering, 28 Mont. 435, 72 Pac. 821; Byers v. Chase, - Neb. -, 167 N. W. 405; Brincker-hoff v. Lansing, 4 Johns. Ch. (N. Y.) 65, 8 Am. Dec. 538; Dunham v. Dey, 15 Johns. (N. Y.) 554, 8 Am. Dec. 282; Bank of Utica v. Finch, 3 Barb. Ch. (N. Y.) 393, 49 Am. Dec. 175; Alston v. Alston,

2 Rich. (S. C.) 427, note, Seymour v. Darrow, 31 Vt. 122. For cases in which the circumstances were held to show an intention to extinguish the note and mortgage, see Wilhelmi v. Leonard, 13 Iowa, 330; Tucker v. Alger, 30 Mich. 67; Jarnagan v. Gaines, 84 111. 103.

4. Cullum v. Branch Bank at Mobile, 23 Ala. 800; London & S F. Bank v. Bandmann, 120 Cal. 220, 65 Am. St. Rep. 179, 52 Pac. 583; Citizens' Nat. Bank v. Dayton, 116 111. 257, 4 N. E. 492; Simmons Hardware Co. v. Thomas, 147 Ind. 313, 46 N. E. 645; Lewis v. Starke, 10 Sm. & M. ( Miss.) 120; Wilson v. Pickering, 28 Mont. 435, 72 Pac. 821; New Hampshire Bank v. Willard. 10 N. H. 210; Choteau v. Thompson, 3 Ohio St. 424; Nichols v. Briggs, 18 S. C. 473; Artrip v. Rosnake, 96 Va. 277. 31 S. E. 4; Williams v. Starr, 5 Wis. 534.

5. Reeder v. Nay, 95 Ind. 164; Jouchert v. Johnson, 108 Ind. 436,

In applying the doctrine above referred to, the courts have shown a tendency, wherever possible, to recognize the indebtedness secured by the mortgage as continuing, in spite of discrepancies in the terms of the successive notes or other instruments evidencing an indebtedness. Thus the presumption in favor of the continued existence of the debt secured by the mortgage has been held to apply in spite of the fact that the substituted note or other instrument has indorsers or sureties, while the former note had none, or vice versa, or that the indorsers or sureties are different,6 that the new note is payable on demand, while the former note was payable at a certain date,7 or that they were made payable at different places.8 Even an instrument of an entirely different character may be substituted, as when a note was given originally, and subsequently a recognizance was given for the debt,9 when a note was substituted for a bond originally given,10 or when a judgment note was substituted for a single bill.11

Provided the indebtedness can be regarded as the same, the fact that the new note is given by a different person, as for instance, by a purchaser of the property from the maker of the original note, has been regarded as immaterial,11a as has the fact that the new note is in favor, not of the original creditor, but of one to whom the mortgage debt has been assigned.12 The same principle applies in case a part of the debt is paid and a new note is taken for the balance remaining due, the mortgage being as effective to secure payment of such balance as of the whole original debt.13 And the debt continues to be secured by the mortgage although the note originally given therefor is cancelled, and a new note is executed for a greater amount, covering the debt secured and also another debt.14 And provided the amount which the mortgage was made to secure is not exceeded, it is effective to secure what is due although the debt, after being reduced, is again increased.15