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 .
96. Cheney v. Crandell, 28 Colo. 383, 65 Pac. 56; Equitable Trust Co. v. Fisher, 106 III. 189; Magee been held that a sale which is invalid on this ground may be ratified by the conduct of the creditor showing his acquiescence in the sale.97 And a sale so made has been upheld in favor of an innocent purchaser.98
Since a power which involves the exercise of discretion cannot be transferred or delegated, in the absence of express authority so to do,99 it would seem that if a power is given to the mortgagee alone to sell on default, one to whom he transfers the mortgage debt would not be able to exercise it. It has been so decided in England, though the fact that the power is given to the mortgagee "and assigns" is regarded even there as authorizing its exercise by an assignee of the mortgage or debt.1 Occasionally an implication to this effect is to be found in cases in this country, it being said or decided that, the power being in terms given to the mortgagee "and assigns," it may be exercised by an assignee.2 But more usually one to whom, as it is ordinarily expressed, the mortgage is assigned, has been regarded as having the right to exercise the power, without reference to whether the power is in terms given to assigns.3 These cases do not discuss the v. Burch, 108 Mo. 336. 18 S. W. 1078; Boone v. Miller, 86 Tex. 74, 23 S. W. 574. See Walker v. Brungard, 13 Sm. & M. (Miss.). 723; Todd v. Bemis, - Tex. Civ. App. - , 158 S. W. 182.
97. Blake v. McKusic, 8 Minn. 338; Norwood v. Lassiter, 132 N C. 52, 43 S. E. 509; Price v. Blankenship, 71 Mo. App. 548.
98. Cheney v. Crandell, 28 Colo. 383, 65 Pac. 56. See Biffle v. Pullam, 125 Mo. 108, 28 S. W. 323.
99. Ante, Sec. 322.
1. Bradford v. Belfield. 2 Sim. 264; Rumney v. Smith (1897), 2 Ch. 351. See Barry v. Anderson, 18 Ont. App. 247.
2. See Pardee v. Lindley, 31 III. 174; Strother v. Law, 54 III. 413; Sanford v. Kane, 133 III. 199, 8 L. R. A. 724, 23 Am. St. Rep. 602, 24 N. E. 414; Dolbear v. Norduft, 84 Mo. 619.
3. Ramsey v. Sibert, 192 Ala. 176, 68 So. 349; Dunning v. Mc-Donald, 54 Minn. 1, 55 N. W 864; Patten v. Pearson, 60 Me. 220; Mastin v. Marshall, 94 Md. 480, 51 Atl. 85; Holmes v. Turners Falls Lumber Co., 150 Mass. 535, 6 L. R. A. 283, 23 N. E. 305; Dunning v. McDonald, 54 Minn. 1, 55 N. W. 864; Bell v. Twilight, 22 N. H. 500; Morris v. McKnight, 1 N. D. 226, 47 N. W. 375. In several states any difficulty in requestion, or indicate the theory on which an assignee is to be regarded as entitled to exercise the power given to the mortgagee, and this failure is perhaps the more noticeable in view of the fact that it is generally agreed that such a power, given to the trustee in a deed of trust to secure a debt, cannot be delegated or transferred to another.4 It would seem that the right of the mortgagee's assignee to exercise the power must be based on the view that, by giving the power to the mortgage creditor himself, rather than to a third person as trustee, the mortgagor in effect authorizes the transfer or delegation of the power to any person who may, by assignment, become creditor in his place, and that an assignment is construed as involving an exercise of the right to delegate the power. Conceding that the power is exercisable by an assignee of the mortgagee, a mortgagee cannot, it has been decided, after making an assignment of the debt, exercise the power.5
As to who is an assignee of the mortgage and as such entitled to exercise the power, it has been decided in one state in which the legal title is vested in the mortgagee, that only one to whom the legal estate in the land has been transferred can exercise the power.6 In some states the statute requires that, in case a mortgage has been assigned, the assignment must be of gard to the right of an assignee to exercise the power is obviated by a statutory provision that it may be exercised by any person who, by assignment or otherwise, becomes entitled to the money secured. See New York Real Prop. Law, Sec. 146; Michigan Comp. Laws 1915, Sec. 11651; Wisconsin St. 1913, Sec. 2156.
4. Post, this section, note 15.
5. Hamilton v. Lubukee, 51 III. 415, 99 Am. Dec. 562; Wilson v. Troup, 2 Cow. (N. Y.) 195, 14 Am record in order to authorize a sale under a power therein, the effect of which requirement is that one to whom the debt alone is specifically transferred, cannot exercise the power, such transfer not being susceptible of record. Apart from such a statute, it would seem that a transferee of the debt might be regarded as an assignee for the purpose of the exercise of the power of sale,7 while one to whom the debt is not assigned, although he holds what purports to be as assignment of the mortgage, cannot be so regarded.8
Dec. 458; Cutler v. Clementson, 67 Fed. 409; Sadler v. Jefferson, 143 Ala. 669, 39 So. 380 (semble). So when the mortgagee has "assigned the mortgage." Cushing v. Ayer, 25 Me. 383. Aliter as to an "assignment of the mortgage" without the debt. Hamilton v. Lubukee, 51 III. 415, 99 Am. Dec. 562.
6. Dameron v. Eskridge, 104 N. C. 621, 10 S. E. 700; Hussey v. Hill, 120 N. C. 312, 58 Am. St. Rep. 789, 26 S. E. 919.
In one state it has been decided that one to whom a mortgage debt is assigned as collateral security cannot exercise the power of sale, by reason of the existence of conflicting equities which should be settled in court.9 But that such an assignee may exercise the power is elsewhere clearly declared.10
Whether, upon the death of the mortgagee, another may exercise the power in his place, would seem properly to depend on what intention appears in the mortgage instrument in that regard. If the power is expressly given to his "personal representatives," or to his "executors and assigns," the personal representative may unquestionably exercise the power.11 There are, however, occasional decisions to the effect that the mortgagee's personal representative may exercise the power even in the absence of any mention of him in the mortgage instrument, these being usually based on the theory that he is in the position of an assignee by operation of law.12 A power expressly