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 .
A transfer of the legal title vested in the mortgagee by the execution of the mortgage, does not pass an interest in the mortgaged land, which the mortgagee may happen to have, entirely distinct from and independent of the mortgage. Merritt v. Harris, 102 Mass. 326; Barnstable Sav. Bank v. Barrett, 122 Mass. 172.
32a. Ante, Sec. 628(b), notes 4-6.
Whether a particular transaction involving an express transfer of the mortgagee's legal title is also to have the effect of transferring the debt would seem to be primarily a question of the construction of the language used.35 In several of the states in which the mortgagee has the legal title, a transfer by the mortgagee in terms of the mortgaged land, or of his interest in the land, has been regarded as sufficient to transfer, not only his legal title as mortgagee, but also the debt secured.36 In one or two of such states, on the other hand, a transfer in such terms has been held to pass merely the legal title to the land,37 and it can evidently have only such a limited operation when the transferor has already disposed of the debt to another.38 In two of such states a conveyance in terms of the land is regarded as effective for any purpose only when the mortgagee executing it is in possession of the land, though passing the debt as well as the legal title if the mortgagee is in possession.39
33. Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Farrell v. Lewis, 56 Conn. 280 14 Atl. 931; Pettus v. Gault, 81 Conn. 415, 71 Atl. 509; Barrett v. Hinckley, 124 111. 32, 7 Am. St. Rep. 331, 14 N. E. 863; Sanger v. Bancroft, 12 Gray. (Mass.) 365; Jackson v. Willard, 4 Johns. (N. Y.) 40.
34. Devlin v. Collier, 53 N. J. L. 422, 22 Atl. 201; Delano v. Bennett, 90 111. 533.
35. See Bulkley v. Chapman. 9 Conn. 5.
36. Welsh v. Phillips, 54 Ala. 309; Hooper & Nolen v. Birch-field, 138 Ala. 423, 35 So. 351;
Sadler v. Jefferson, 143 Ala. 669. 39 So. 380; Dearnaley v. Chase, 136 Mass. 288; Stark v. Boynton, 167 Mass. 443, 45 N. E. 764; Smith v. Hitchcock, 130 Mass. 570; Hinds v. Ballou, 44 N. H. 619; Webb v. Crouch, 70 W. Va. 580, Ann. Cas. 1914 A, 728, 74 S. E. 730.
37. Farrell v. Lewis, 56 Conn. 280, 14 Atl. 931. (quit claim deed). In New Jersey, apparently, it does not have even this effect. Devlin v. Collier, 53 N. J. L. 422, 22 Atl. 201.
38. Ruggles v. Barton, 13 Gray (Mass.) 506; Wolcott v. Winchester, 15 Gray (Mass.) 461.
In case the mortgage was in the form of an absolute conveyance,40 a conveyance in terms of the land by the mortgagee is ordinarily assumed to pass the mortgage debt with the incidental security of the land.41
In determining the operation of a conveyance of the land as transferring all the mortgagee's rights, in states retaining the title theory, the courts have, at times, referred to the character of the conveyance, it being occasionally said that a warranty deed is sufficient for this purpose,42 and occasionally that a quitclaim deed is sufficient,43 or that the latter is insufficient.44 Even a mere release has been regarded as sufficient to transfer the debt as well as the legal title.45
The mode of execution of an instrument by which the mortgagee undertakes to transfer his legal title to the land is to be determined by the same considerations as control in the case of any conveyance of one's legal title to land in the particular jurisdiction. It has accordingly been decided, in particular jurisdictions, that the instrument must be sealed46 and that acknowledg39. Furbush v. Goodwin, 25 N. H. 425; Clark v. Clark, 56 N. H. 105; Hinds v. Ballou, 44 N. H. 619; Conner v. Whitmore, 52 Me. 185; Lunt v. Lunt, 71 Me. 377; Wyman v. Porter, 108 Me. 110, 79 Atl. 371.
40. Ante, Sec. 605.
41. See, e. g., Hawkins v. El-ston, 58 Colo. 400, 146 Pac. 254; Gooch v. Phillips, 46 Okla. 145, 148 Pac. 135.
42. Hooper & Nolen v. Birch-field, 138 Ala. 423, 35 So. 351; Ruggles v. Barton, 13 Gray (Mass.) 506; Woods v. Woods, 66 Me. 206.
43. Lamprey v. Nudd, 29 N. H. 299; Hinds v. Ballou, 44 N. H. 619; Hunt v. Hunt, 14 Pick. (Mass.) 374, 25 Am. Dec. 400; Douglass v. Durin, 51 Me. 121. See Johnson v. Leonards, 68 Me. 237.
44. Farrell v. Lewis, 56 Conn. 280, 14 Atl. 931.
45. Welch v. Priest, 8 Allen (Mass.) 165.
46. Barrett v. Hinckley, 124 111. 32, 7 Am. St. Rep. 331, 14 N. E. 863; Smith v. Kelley, 27 Me. 237; Dameron v. Eskridge, 104 N. C. 621, 10 S. E. 700; Dimon v. Diment and recording are necessary.47
In states in which the mortgagee has not the title to the land, a conveyance in terms only of the land or of his interest in the land is obviously nugatory as such, and such a conveyance has ordinarily been regarded as not operating to transfer the debt with its accompanying security,48 ocasionally subject to a qualification to the effect that such is the case in the absence of evidence of an intention to transfer the debt,49 and subject also to an exception, it seems, in case the mortgage is in the form of an absolute conveyance. But though the cases do not ordinarily discuss the effect of such a conveyance by the mortgagee from that point of view, it would seem that, in most cases, the question is whether, when the conveyance is construed in the light of the surrounding circumstances, it shows an intention to transfer the debt secured. That, in the particular jurisdiction, the mortgagee has or has not the legal title may affect the construction in this regard, but it seems questionable whether, even in those states which adopt the "lien" theory of a mortgage, it should be assumed as an absolute rule of law that a conveyance in terms of the mortgagee's rights in the land cannot operate as a transfer of the debt. There is one case, it appears, in which the mortgage debt and security are regarded as passing mon, 10 N. J. L. 156. See Morrison v. Mendenhall, 18 Minn. 232.
47. Adams v. Parker, 12 Gray (Mass.) 53; Sanders v. Cassady, 86 Ala. 246, 5 So. 503. And see Partridge v. Partridge, 38 Pa. St. 78.
48. Peters v. Jamestown Bridge Co., 5 Cal. 334, 63 Am. Dec. 134; Jordan v. Sayre, 29 Fla. 100, 10 So. 823; Johnson v. Cornett, 29 Ind. 59; Swan v. Yaple, 35 Iowa, 248; Watson v. Hawkins, 60 Mo. 550;
By a conveyance in terms of the land, although the grantor has no intention to that effect, for the reason that he supposes himself vested with title to the land by a foreclosure sale which was in fact invalid. In such case he holds the debt and mortgage on the theory of subrogation,41a and when he undertakes to transfer the land to one who pays therefor, his grantee acquires the debt and incidental security,49b not, it is evident, because this was the intention, but rather, it seems, by an application of the doctrine of subrogation, or a doctrine analogous thereto.
Jackson v. Bronson, 19 Johns. (N. Y.) 325. But see to the contrary, Walkenhorst v. Lewis, 24 Kan. 420; Blessett v. Turcotte, 20 N. D. 151, 127 N. W. 505; Cooper v. Harvey, 21 S. D. 471, 113 N. W. 717.
49. Greve v. Coffin, 14 Minn. 345, 100 Am. Dec. 229; McCam-mant v. Roberts, 87 Tex. 241, 27 S. W. 86; Yankton Building & Loan Ass'n v. Dowling. 10 S. I). 540, 74 N. W. 438.
7 7 order to be effective, be delivered,50 as must any written conveyance of property rights, that is, an intention must in some way be indicated that the instrument shall be actually operative.51
As to the necessity of the acceptance of the transfer by the transferee, the doctrine not infrequently asserted, that in order to effect a valid transfer of a chattel, even by way of gift, an acceptance is necessary,52 would render an acceptance necessary in the case of a transfer of the mortgage debt.53 But the effect of the requirement of acceptance would, in this case, as in the case of a similar asserted requirement in the ease of a conveyance of an estate in land,54 be to a considerable extent nullified by the adoption of the fiction that the donee's acceptance may be presumed.55
49a. Post, Sec. 646.
49b. Robinson v. Ryan, 25 N. Y. 320; Cooke v. Cooper, 18 Ore. 142, 22 Pac. 945; Smithson Land Co. v. Brautigam, 16 Wash. 174, 47 Pac. 434.
50. Shurtleff v. Francis, 118 Mass. 154; Hutton v. Cuthbert, 51 Mich. 229, 16 N. W. 386; Kersten v. Kersten, 114 Minn. 24, 129 N. W. 1051; Ruckman v. Ruckman, 33 N.J. Eq. 354; Aldrich v. Ward, 68 N. Y. App. Div. 647, 73 N. Y. Supp. 918; Brown v. Johnston, 7
Abb. N. Cas. 188; Pringle v. Pringle, 59 Pa. St. 281. But see Aldridge v. Weems, 2 G. & J. 36; 19 Am. Dec. 250.
51. Ante, Sec. 461.
52. See the full discussion of the doctrine in an editorial note in 17 Columbia Law Rev. 427.
53. An acceptance is assumed to be necessary in Aldrich v. Ward, 68 N. Y. App. Div. 647, 73 N. Y. Supp. 918; Brown v. Johnston, 7 Abb. N. Cas. 188.