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 .
Tex. 7; Smith v. Woodward, 122 Va. 356, 94 S. E. 916.
25. Jackson v. Crafts, 18 Johns. (N. Y.) 110; Frost v. Yonkers Sav. Bank, 70 N. Y. 553, 26 Am. Rep. 627; Welch v. Greenalge, 2 Heisk. (Tenn.) 209. Contra, Hudson Bros. Commission. Co. v. Glencoe Sand & Gravel Co., 140 Mo. 103, 62 Am. St. Rep. 722, 41 S. W. 450.
26. Shippen v. Whittier, 117 III. 282, 7 N. E. 642; Crowley v. Adams, 226 Mass. 582, 116 N. E. 241; Adams v. Carpenter, 187 Mo. 613, 86 S. W. 445; Cameron v. Irwin, 5 Hill (N. Y.) 272.
27. Merchant v. Woods. 27 Minn. 396, 7 N. W. 826; Bansman v. Eads, 46 Minn. 148, 24 Am. St. Rep. 201, 48 N. W. 769; Garrett v. Crawford, 128 Ga. 519, 119 Am.
St. Rep. 398, 57 S. E. 792; Warner v. Blakeman, 36 Barb. (N. Y.) 501.
27a. See Grant v. Burr, 54 Cal. 298; Faxon v. All Persons, 166 Cal. 707, 137 Pac. 919; First Nat. Bank of Cincinnati v. Thomas, 8 Ky. L. Rep. 690, 3 S. W. 12; Bush v. Cooper, 26 Miss. 599, 59 Am. Dec. 270; Swabey v. Boyers, 274 Mo. 332, 203 S. W. 204; Lewis v. Schwenn, 93 Mo. 26, 3 Am. St. Rep. 511; Berkin v. Healy, 52 Mont. 398, 158 Pac. 1020; Menzel v. Hinton, 132 N. C. 660, 95 Am. St. Rep. 647, 44 S. E. 385; Gold-frank v. Young, 64 Tex. 432; Hayes v. Frey, 54 Wis. 503, 11 N. W. 695.
28. But see Schwertner v. Provident Mut. Building-Loan Ass'n, 17 Ariz. 93, 148 Pac. 910; House violation of his contract,29 and he can evidently not do so when the power is to be regarded as "coupled with an interest" or as a power of appointment.30 Likewise the power is not revoked by the insanity of the mortgagor, whether the mortgagee has,31 or has not.32 the legal title, or by the mortgagor's insolvency or bankruptcy.33
Effect of mortgagor's death. The question whether a power of sale in a mortgage can be exercised after the death of the mortgagor has been the subject of a number of decisions. In those jurisdictions in which the mortgage operates to vest a legal title in the mortgagee, his right to exercise the power after the mortgagor's death is free from question,34 the courts ordinarily applying the doctrine enunciated in the well known case of Hunt v. Rousmanier,35 that a power v. Carr, 185 N. Y. 453, 6 L. R. A. (N. S.) 510, 113 Am. St. Rep. 936, 78 N. B. 171.
29. Ray v. Hemphill, 97 Ga. 563, 25 S. E. 485; Mutual Loan & Banking Co. v. Haas, 100 Ga. III, 62 Am. St. Rep. 317, 27 S. B. 980. "Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or, if not so, is deemed irrevocable in law." Hunt v. Rousmanier's Adm'rs, 8 Wheat. (U. S.) 174, 5 L. Ed. 589.
30. Presnall v. D. R. Burgess & Co., 181 Ala. 263, 61 So. 804; Hyde v. Warren, 46 Miss. 13; Schanework v. Hoberecht, 117 Mo. 22, 38 Am. St. Rep. 631, 22 S. W. 949; Bancroft v. Ashhurst, 2 Grant (Pa.) 513; Sulphur Mines Co. of Virginia v. Thompson's Heirs, 93 Va. 293, 25 S. E. 232.
31. Berry v. Skinner, 30 Md. 567; Vanmeter v. Darrah, 115 Mo. 153, 22 S. W. 30.
32. Lundberg v. Davidson, 72 Minn. 49, 42 L. R. A. 103, 74 N. W. 1018; Encking v. Simmons, 28 Wis. 272; Haggart v. Ranger, 15 Fed. 860.
33. Hall v. Bliss, 118 Mass. 554, 19 Am. Rep. 476.
34. Hudgins v. Morrow, 47 Ark. 515, 2 S. W. 104; More v. Calkins, 95 Cal. 435, 29 Am. St. Rep. 128, 30 Pac. 583; Strother v. Law, 54 111. 413; Berry v. Skinner, 30 Md. 567; Varnum v. Meserve, 8 Allen (Mass.) 158; Beatie v. Butler, 21 Mo. 313, 64 Am. Dec. 234; Hyde v. Warren, 46 Miss. 13; Bergen v. Bennett, 1 Caines' Cas. (N. Y.) 1; Carter v. Slocomb, 122 N. C. 475, 65 Am. St. Rep. 714, 29 S. E. 720.
35. 8 Wheat (U. S.) 174, 5 L. Ed. 589.
Coupled with an interest, being exercisable by the donee of the power in his own name, is not revoked by the donor's death. In such a case the mortgagee would seem to be in the position of a trustee with power of sale,36 and a power of sale given to a trustee is obviously not extinguished by the death of the creator of the trust. In those states in which the mortgage does not operate to transfer the legal title to the mortgagee, and also, it would seem, in any case in which the mortgagor, by reason of having made a previous mortgage or otherwise, has not the legal title, the mortgagee's power of sale cannot be regarded as "coupled with an interest" as that expression is used in Hunt v. Rousmanier, meaning thereby a power in one who, having also a legal estate or right of ownership in the property, need not, in exercising the power, exercise it in the name of the donor of the power. It has accordingly been decided in two states37 that the mortgagee, not having a legal estate in the property, has a mere power of agency, which he cannot exercise after the death of the mortgagor, for the reason that he cannot do it by a sale and conveyance in his own name, nor can he do it by a sale and conveyance in the name of one who is dead. In a number of states, on the other hand, it has been decided that, although the mortgagee acquires no legal title, the power of sale given him is "coupled with an interest," so as not to be revoked by the mortgagor's death.38-42 This latter gage to the contrary,47 a mortgagee cannot usually purchase at a sale made by him under a power of sale in the mortgage, since he bears, so far as concerns the exercise of such a power, at least a quasi trust relation towards others interested in the land, and a sale to him will be set aside upon an application, made with reasonable promptness, by the owner of the land or other person interested therein.48 The same rule applies to a purchase by the trustee selling under the power as to a sale by a mortgagee, and a sale to himself may be set aside.49 But the creditor whose debt is secured by a deed of trust to another is under no disability in this regard.50