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 .
92. Vann v. Marbury, 100 Ala. 438, 23 L. R. A. 325, 46 Am. St. Rep. 70, 14 So. 273; Foster v. Beals, 21 N. Y. 247; Barnes v. Long Island Real Estate Exch. & Inv. Co., 88 N. Y. App. Div. 83. 84 N. Y. Supp. 951.
93. Detwilder v. Heckenlaible, 63 Kan. 627, 66 Pac. 653; Merriam v. Bacon, 5 Mete. (Mass.) 95 (payment by mortgagor not personally liable); Robbins v. Larson, 69 Minn. 436, 65 Am. St. Rep. 527, 72 N. W. 456; Cornish v. Woolverton, 32 Mont. 456, 108 Am. St. Rep. 598, 81 Pac. 4; Emery v. Gordon, 33 N. J. Eq. 447; Fritz v. Simpson, 34 N. J. Eq. 436;
Brewster v. Carnes, 103 N. Y. 556, 9 N. E. 323. See Pennypacker v. Latimer, 10 Idaho, 618, 625, 81 Pac. 55.
94. See McKinley-Lanning Loan & Trust Co. v. Gordon, 113 Iowa, 481, 85 N. W. 816; Fidelity Trust & Safety Vault Co. v. Carr, 24 Ky. L. Rep. 156, 66 S. W. 990; Mitchell v. Burnham, 44 Me. 286; Randal! v. Glendenning, 19 Okla. 475, 92 Pac. 158; Barry v. Stover, 20 S. U. 459, 129 Am. St. Rep. 941, 107 N. W. 672.
95. Garrett v. Fernauld 63 Fla. 434, 57 So. 671; Murphy v. Barnard, 162 Mass. 72, 44 Am. St. Rep. 340, 38 N. E. 29 (compare Merri am v. Bacon, 5 Mete. (Mass.) 95); Wilson v. Campbell, 110 Mich. 580. 35 L. R. A. 544, 68 N. W. 278; Foster v. Carson, 159 Pa. St. 477 39 Am. St. Rep. 696, 28 Atl. 356;
3 R. P.- 21
In a number of states there is an express statutory provision that the record of the assignment of a mortgage shall not, of itself, constitute notice to the mortgagor, his heirs or personal representatives, so as to invalidate any payment made by either of them to the mortgagee. Such a statute, it has been decided, does not change the rule as to the effect of a payment to the assignor, in the case either of a non-negotiable chose in action or of a debt represented by a negotiable note. It merely prevents the record from operating as notice to the mortgagor so as to invalidate a payment made by him to the assignor in ignorance of the assignment.96 The statute, it has been decided, is applicable to a payment made on behalf of the mortgagor,97 but not to one made by a transferee of the mortgaged land,98 or by a second mortgagee.99 Whether, in the case of a payment by a transferee of the land, there is a distinction to be made according as the transfer is, made before or after the record of the assignment, does not clearly appear. One who takes a transfer of the land after the record of the assignment may well be charged with notice thereof, while one who takes such a transfer before the record of the assignment would seem, apart from the statute, to be entitled to the same immunity as the mortgagor, from the necessity of searching the records before making a payment.1 In some states, an otherwise similar statute, for the words "to the mortgagee," substitutes the words "to the person holding such note, bond, or other instrument."1a This latter phraseology evidently does not afford the same protection to the mortgagor as does that before referred to.
Williams v. Paysinger, 15 S. C. 171; Singleton v. Singleton, 60 S. C. 216, 38 S. E. 462.
96. Williams v. Keyes, 90 Mich. 290, 30 Am. St. Rep. 438, 51 N. W. 520; Blumenthal v. Jassoy, 29 Minn. 177, 12 N. W. 571; see Bur-nans v. Hutcheson, 25 Kan. 625; Eggert v. Beyer, 43 Neb. 711, 62 N. W. 57.
97. Goodale v. Patterson, 51 Mich. 532, 16 N. W. 890. That the statute applies to a payment by conveyance of property see Rodg-ers v. Parker, 136 Cal. 313, 68 Pac. 975;
98. Brewster v. Carnes, 103 N. Y. 556, 9 N. E. 323; Cornish v. Woolverton, 32 Mont. 456, 108 Am. St. Rep. 598, 81 Pac. 4; Eggert v. Beyer, 43 Neb. 711, 62 N. W. 57; Bettle v. Tiedgen, 77 Neb. 795, 799, 116 N. W. 959.
99. Robbins v. Larson; 69 Minn. 711, 62 N. W. 57.
In case there is no agency on the part of the assignor for the assignee, and there is no notice of the assignment, actual or constructive, on the part of the person making the payment, the effectiveness of the payment to the assignor as against the assignee is ordinarily determined by the same considerations as would control in the case of an obligation not secured by mortgage. These considerations are as follows: The general rule, in the case of the assignment of a non negotiable chose in action, is that the assignment is, as against the debtor, not complete until he has notice of the assignment, and consequently a debtor who performs his contract by making payment to his creditor before he has notice of an assignment by the latter, is discharged from liability to the extent of such payment.2 This rule, most properly, it would seem, has been applied in connection with a debt secured by mortgagee, when represented by a non negotiable bond or note.3 In some states, however, payments made to the la. Rogers v. Peckham, 120 Cal. 238, 52 Pac. 483; Cornish v. Woolverton, 32 Mont. 456, 108 Am. St. Rep. 598, 81 Pac. 4.
1. In Brewster v. Carnes, 103 N. Y. 556, 9 N. E. 323, and Eggert v. Beyer, 43 Neb. 711, 62 N. W. 57, the payment was by one who acquired the mortgaged premises after the record of the assignment. In Robbins v. Larson, 69 Minn. 436, 65 Am. St. Rep. 572, 72 N. W. 456, the court refers to the fact that the second mortgage, by the holder of which the payment was made, was subsequent to the record of the assignment, and in Cornish v, Woolverton, 32 Mont. 456, 108 Am. St. Rep. 598,
81 Pac. 4. that the transfer of the land was so subsequent is referred to.
2. Anson, Contracts (Huff cut's Ed.) p. 294; Hammon, Contracts, Sec. 358; Norton, Bills & Notes (3d Ed.) 11; 5 Encyclopedia Law & Practice, 936.
3. Williams v. Sorrell, 4 Ves. 389; McAuliffe v. Reuter. 166 111. 491, 46 N. E. 1087; McKinleymortgagee by the mortgage debtor, even before notice to the latter of the assignment, have been regarded as ineffective as against the assignee, by reason of the failure of the debtor to demand the production by the mortgagee of the non negotiable note or bond secured,4 thus applying, in the case of such a note or bond evidencing a debt secured by a mortgage, a requirement as to the production of the note or bond which, while concededly applicable in the case of a negotiable note,5 has usually been regarded as inapplicable in the case of a non negotiable instrument.6