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 .
C. A. 1; Macomber v. French, 198 Mass. 20, 84 N. E. 328.
40. Remington Paper Co. v. O'Dougherty, 81 N. Y. 474; Kingpecuniary penalty upon one who, upon the discharge of the debt secured, fails to execute the release or certificate, or to have it entered, as the case may be.41
It may occur that the parties interested agree to extinguish the lien as regards either the whole or a part of the land, leaving the debt still existent in whole or in part, and such an agreement is carried into effect by the execution, by the mortgagee, or his successor in interest, of a release of the land, in whole or in part, from the lien. In such a case the release operates directly to free the land, or a part thereof, from the lien of the mortgage, and is in that regard analogous to a release by way of extinguishment at common law. So a release of part of the land from the mortgage may be executed in compliance with a provision of the mortgage instrument for such a release upon part payment of the debt secured.42 The ordinary release of a mortgage, so called, on the other hand, appears to constitute merely a discharge of the obligation secured by the mortgage, or evidence of such discharge, except as occasionally it also involves a reconveyance of the legal title. The designation frequently employed in this connection, that of certificate of "satisfaction," is for this reason more appropriate than the expression "release." man v. Sinclair, 80 Mich. 427, 20 Am. St. Rep. 522, 45 N. W. 187; Booth v. Hoskins, 75 Cal. 271, 17 Pac. 225.
41. Jones, Mortgages, Sec.Sec. 992-1037.
42. It has occasionally been decided that an agreement for the release of a portion of the land upon the payment of a sum named "apportioned the mortgage debt," so that it could be enforced against that portion of the land only to the extent of that sum. Chicago Lumber & Coal Co. v.
Swalley, 85 Kan. 4, 116 Pac. 475; Scott v. Smith, 58 Ore. 591, 115 Pac. 969. Such a view would seem to bear somewhat severely on the mortgagee and not, in the ordi nary case, to accord with his probable intention.
A covenant by the mortgages to execute partial releases upon the payment of specified portions of the debt secured has been decided, at least when not in terms in favor of the assigns, to be personal to the mortgagor, so that a subsequent transferee of the land person to execute it, generally speaking, is the person entitled to demand the payment of the debt. Accordingly, the survivor of two joint creditors, being the person entitled to demand payment, has power to execute a release.50
As before stated,43 in some jurisdictions in which the legal title is vested in the mortgagee, the discharge of the obligation secured, if after maturity, does not of itself revest the legal title in the mortgagor or in his successor in interest, and it does not seem that a mere acknowledgment of satisfaction of the mortgage obligation, or even a mere release of the land from the lien, could, apart from statute, be construed as showing an intention to reconvey the legal title to the mortgagor.44 But the statutes of most of the states in which the matter is of practical importance provide that a release or satisfaction in the prescribed form shall revest all title in the mortgagor or his successor in interest, or shall have the effect of a conveyance by way of release.
-(b) Conveyance by mortgage creditor as release. The question has occasionally arisen whether a conveyance, by the mortgage creditor to the owner of the land, in terms of the land, is effective to extinguish the rights of the creditor as such, and whether it does have such an effect depends on the language used, construed with reference to the circumstances of the case, particularly the possible existence of another object in making the conveyance, as when the creditor has some other interest in the land.45 So it has been decided that the fact that the creditor, as husband of the could not avail thereof. Clark v. Cowan, 206 Mau5. 252, 92 N. E. 474; Pierce v. Kneeland, 16 Wis. 672. 84 Am. Dec. 726.
43. Ante, Sec. 640(a), note 24.
44. In Lowe v. Convention of Protestant Episcopal Church, 83 Md. 409, 35 Atl. 87, it was held that the statutory "short form" of release of mortgage was insufficient to reconvey the legal title, at least as to a portion of the property only. In Wolfe v. Doe, 13
Sm. & M. (Miss.) 103, 51 Am. Dec. 147, it was intimated that a "satisfaction" on the margin of the record did revest title in the mortgagor.
45. Barr v. Foster, 25 Colo. 28, 52 Pac. 1101; Woodbury v. Aikin, 13 111. 639; Mable v. Hat-inger, 48 Mich. 341, 12 N. W. 198; Merritt v. Harris, 102 Mass. 326; Barnstable Sav. Bank v. Barrett, 122 Mass. 172; Collins v. Stocking, 98 Mo. 290, 11 S. W. 750 (conowner of the land, joins in a conveyance thereof by her, does not extinguish his rights under the mortgage, his joinder being intended for a different purpose.46
In a number of cases a conveyance by the mortgage creditor to the owner of the land, either by way of quitclaim deed,47 or otherwise,48 has been regarded as effecting a discharge or release of the former's interest, but in several of these cases there is a lack of ex-plicitness as to whether the instrument operates as a discharge of the obligation secured, and for this reason extinguishes the mortgage security, or whether it operates merely upon the security, leaving the personal obligation for the debt unimpaired. "Whether it operates in the one way or the other would seem to depend upon the construction of the language of the instrument. In some jurisdictions it might be given effect, not as a discharge of either the obligation or of the mortgage security, but as an assignment of the mortgage debt, in which case the question whether the mortgage debt with its attendant security is discharged would be determined by the considerations applicable in connection with the question of merger of the debt, before considered.49