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 .
79. Post, this section, note 82.
80. Post, Sec. 646.
81. Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Johnson v. Sherman, 15 Cal. 287, 76 Am. Dec. 481; Potts v. Plaisted, 30 Mich. 149.
82. Robinson v. Cross, 22 Conn. 171; Redmond v. Packenham, 66 111. 434; Cooper v. Cooper. 256 111. 160, 99 N. E. 871; Gibbs v. Haugh-owout, 207 Mo. 384, 105 S. W. 1067; therefore should pay it.83 This rule is now changed in England by statute.84 In a number of states in this country, likewise, the matter is covered by statutory provisions of varying character, prescribing the order of payment of a decedent's debts, and determining the order of liability of the different classes of property and rights of contribution between them.85
The common-law rule never applied to cases in which the mortgage debt was neither created by the deceased nor in some way made by him his own debt;86 and the right does not usually exist in favor of the heir or devisees as against a legatee, other than the residuary legatee.87
Sherwood v. Wilson, 2 Sweeny (N. Y.) 684; Hamilton v. Hamer, 99 S. C. 31, 82 S. E. 997; Smith v. Orton, 21 How. (U. S.) 241, 16 L. Ed. 104.
83. Lutkins v. Leigh, Cas. t. Talb. 54; Ancaster v. Mayer, 1 Brown Ch. 454, 1 White & T. Lead. Cas. Eq. 881, notes; Sutherland v. Harrison, 86 111. 363; In re Brackey's Estate, 166 Iowa, 109, 147 N. W. 188; Brown v. Baron, 162 Mass. 56, 44 Am. St. Rep. 331, 37 N. E. 772; Cumberland v. Cod-rington, 3 Johns. Ch. (N. Y.) 229, 8 Am. Dec. 492; Hoff's Appeal, 24 Pa. St. 200; Gould v. Winthrop, 5 R. I. 319; 2 Woerner, Administration, Sec. 494; 9 Am. & Eng. Enc. Law (2d Ed.) 1317 et seq.
84. 17 & 18 Vict. c. 113 (Locke King's Act, A. D. 1854.)
85. See 11 Am. & Eng. Enc. Law (2d Ed.) 1063; 19 Am. & Eng Enc. Law (2d Ed.) 1333; 2 Woerner, Administration, Sec. 497.
86. 2 Williams, Executors (9th Ed.) 1565 et seq.; Evelyn v. Evelyn, 2 P. Wms. 659; Scott v.
Beecher, 5 Madd. 96; Stieglitz v. Migatz, 182 Ind. 549, 105 N. E. 465; In re Brackey's Estate, 166 Iowa, 109, 147 N. W. 188; Creesy v. Willis, 159 Mass. 249, 34 N. E. 265; Cumberland v. Codrington, 3 Johns. Ch. (N. Y.) 229, 8 Am. Dec. 492; Hoff's Appeal, 24 Pa. St. 200; In re Hunt, 19 R. I. 139, 61 Am. St. Rep. 743, 32 Atl. 204; Minter v. Burnett, 90 Tex. 245, 38 S. W. 350; Pleasants v. Flood, 89 Va. 96, 15 S. E. 504.
87. 2 Williams, Executors, 1564; Hamilton v. Worley, 2 Ves. Jr. 65; Hoff's Appeal, 24 Pa. St. 206; Thomas v. Thomas, 17 N. J Eq. 356; Mollan v. Griffith, 3 Paige (N. Y.) 402. In Massachusetts the devisee or heir is exonerated as against a general legatee. Hewes v. Dehon, 3 Gray (Mass.) 205; Plimpton v. Fuller, 11 Allen (Mass.) 139; Brown v. Baron, 162 Mass. 56, 44 Am. St. Rep. 331, 37 N. E. 772, And see In re Brackey's Estate, 166 Iowa, 109, 147 N. W. 188.
-(c) Payment to assignor after assignment.
After the mortgage debt has been assigned, the assignor, retaining no beneficial interest, is not entitled to receive any payments on account of the mortgage,88 and if he does receive any such payment, he will no doubt hold the money or property received for the benefit of the assignee.89
The important question in connection with a payment on account of the mortgage obligation, made to the assignor of the obligation after the assignment, is whether such payment is effective in favor of the person making it, ordinarily the mortgagor or his transferee, so as to extinguish the obligation in whole or in part. If the assignor has actual or apparent authority as agent of the assignee to receive payments on as-count of the debt secured, a payment made to him is obviously good and effective as against the assignee, and extinguishes the debt to that extent.90 The following remarks as to the effectiveness of a payment to the assignor are not intended to apply to cases in which such an agency exists.
In case a payment is made to the assignor with notice, on the part of the person making it, of the previous assignment, it is nugatory, and does not operate to extinguish the debt or the mortgage security as against the assignee, who may still assert a claim for the full amount as if no such payment had been made.91 Notice on the part of the person making the payment may be inferred from facts calculated to put him on inquiry.92
88. Keohane v. Smith, 97 111. 156; Chase v. Brown, 32 Mich. 225; Eggert v. Beyer, 43 Neb. 711, 62 N. W. 57; Emery v. Gordon, 33 N. J. Eq. 447; Mitchell v. Cook, 29 Barb. (N. Y.) 243.
89. Robbins v. Larson, 69 Minn. 436, 65 Am. St. Rep. 572, 72 N. W. 456.
90. Pennypacker v. Latimer, 10 Idaho, 618, 81 Pac. 55; McAuliffe v. Reuter, 166 111. 491, 46 N. E. 1087; Fitzgerald v. Beckwith, 182 Mass. 177, 65 N. E. 36; Dodge v. Birkenfeld, 20 Mont. 115, 49 Pac. 590; Pine v. Mangus, 76 Neb. 83, 107 N. W. 222.
91. Lehman v. McQueen, 65 Ala. 570; Daggett v. Flanagan, 78 Ind. 253; Koetter v. German American Title Co., 21 Ky. L. Rep. 813, 53 S. W. 32; Mitchell v.
On the question whether the recording laws make the record of the assignment of a mortgage constructive notice to one who may thereafter undertake to make a payment on the mortgage obligation, diverse views have been asserted. In several states the person making payment has been held to be charged with notice of the assignment by the fact of its record.93 And that he is to so charged may be regarded as implied in occasional decisions that a payment to the assignor was good and effective in view of the failure to record the assignment.94 In a few states the decisions are to the effect that the mortgagor or his transferee is under no obligation to search the records for an assignment before making a payment, and that the failure to record the assignment is immaterial in this regard.95
Burnham, 44 Me. 286; Cutler v. Haven, 8 Pick. (Mass.) 490; Lord v. Schaumloeffel, 50 Mo. App. 360; Barclay v. Blodget, 5 Cow. (N. Y.) 202. And see post, Sec. 642(d).