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 .
We have before considered the question whether an absolute conveyance of land must be accepted by the grantee, and a like question arises as to a mortgage. By the decided weight of authority in this country, an acceptance of the mortgage is necessary, and until such acceptance other persons may acquire rights in the premises, as by judgment or attachment liens, or conveyances, which will take precedence of the mortgage.80 In other jurisdictions a different view is adopted, to the effect that no acceptance is necessary,81 it being sometimes said that the mortgagee's consent to the mortgage, as being for his benefit, will be presumed until he indicates his non-consent.82 As remarked in connection with the question of the acceptance of an absolute conveyance,83 the recognition of such a presumption appears to be equivalent to the adoption of the view that no acceptance is necessary. It has been said, however, that there is no presumption of acceptance, if the mortgage is in any way prejudicial to the mortgagee.84 The
38 Minn. 443, 38 N. W. 359; Terhune v. Oldis, 44 N. J. Eq. 146, 14 Atl. 638; Flint v. Phipps, 16 Ore. 437, 19 Pac. 543; Gorham's Adm'r v. Meacham's Adm'r, 63 Vt. 231, 13 L. R. A. 676, 22 Atl. 572; In re Goldville Mfg. Co., 118 Fed. 892.
80. Woodbury v. Fisher, 20 Ind. 387, 83 Am. Dec. 325; Wads-worth v. Barlow, 68 Iowa, 599: Bell v. Farmers' Bank of Kentucky, 11 Bush (Ky.) 34, 21 Am. Rep. 205; Dole v. Bodman, 3 Mete. (Mass.) 139; Oxnard v. Blake, 45 Me. 602; Field v. Fisher, 65 Mich. 606; Adams v. Johnson, 41 Miss. 258; Kuh v. Garvin, 125 Mo. 547, 28 S. W. 847; Mvnoz v. Wilson, 111 N. Y. 295, 18 N. E. 855; Alliance Milling Co. v.
Eaton, 86 Tex. 401, 24 L. R. A. 369, 25 S. W. 614; Griswold v. Case, 13 Wash. 623, 43 Pac. 876; Welsh v. Sackett, 12 Wis. 243.
81. Merrills v. Swift, 18 Conn. 257, 46 Am. Dec. 315; Elsberry v. Boykin, 65 Ala. 336; Whitney v. Hale, 67 N. H. 385, 30 Atl. 417; Bundy v. Ophir Iron Co., 38 Ohio St. 300. Compare Lewis v. Farrell, 51 Conn. 216.
82. Breathwit v. Bank of For-dyce, 60 Ark. 26, 28 S. W. 511; Rhea v. Planter's Mut. Ins. Co., 77 Ark. 57, 90 S. W. 850; Washington v. Ryan, 5 Baxt. (Tenn.) 622; Atwood v. Marshall, 52 Neb. 173, 71 N. W. 1064.
83. Ante, Sec. 463.
84. Reagan v. First Nat. Bank, 157 Ind. 623, 61 N. E. 575, 62 N. E.
In one state in which acceptance by the mortgagee is ordinarily regarded as necessary as against attaching creditors and other incumbrancers, it has been decided that if at the time of making a loan the lender asks that security be given, a mortgage subsequently made to secure the loan will be presumed to be accepted by the creditor when informed of it.85 And in the same state a mortgage has been regarded as sufficiently accepted when the instrument was handed to an attorney as representative of the mortgagee, in pursuance of a prior arrangement with the latter, though the particular attorney was not designated by the mortgagee.86 In another state acceptance, by one of several mortgagees, of a mortgage securing a separate claim in favor of each, has been regarded as sufficient in behalf of all.87
Sec. 605. Conveyance absolute in form.(a) Separate written defeasance. As before stated, in many jurisdictions, some even in which the lien theory of a mortgage is accepted, the language of the common law conveyance upon condition subsequent is still utilized for the purpose of creating the mortgage relation. The condition or proviso, by which, in such case, it is provided that the mortgagee's estate shall come to an end, or that the conveyance shall be void, is ordinarily contained in the instrument by which the conveyance is made to the mortgagee, but occasionally it is in a separate instrument, and the validity of such a separate instrument of "defeasance," is well recognized.88
701; Whitney v. Hale, 67 N. H. 385.
85. Mills v. Miller, 109 Iowa, 688, 81 N. W. 169.
86. In re Guyer 69 Iowa, 585, '29 N. W. 826; Reynolds v. Black, 91 Iowa, 1, 58 N. W. 922.
87. Shelden v. Erskine, 78 Mich. 627, 44 N. W. 146. Contra, when the interests of the various mortgagees were antagonistic. Bell v. Farmers Bank, 11 Bush (Ky.) 34, 21 Am. Rep. 205.
In order that two instruments together constitute a mortgage with a separate defeasance, it is necessary that they be delivered at approximately the same time, or at least that they be parts of the same transaction.89 And oral evidence is admissible to show that such is the case.90 Moreover, in order to create a mortgage valid at law as well as in equity, the defeasance must, it has been decided, be of as high a nature as the conveyance itself, that is, if the latter is under seal, the defeasance must be under the seal of the grantee, so that it may be regarded as part of the same instrument, and it must be executed with the other formalities required in the case of a conveyance of land.91
88. 4 Kent Comm. 141; Teal v. Walker, 111 U. S. 242, 28 L. Ed. 415; Kelley v. Leachman, 2 Idaho, 1112; Harbison v. Lemon, 3 Blackf (Ind.) 51, 23 Am. Dec. 376; Ed-rington v. Harper, 3 J. J. Marsh (Ky.) 353, 20 Am. Dec. 145; Bunker v. Barron, 79 Me. 62, 1 Am. St. Rep. 282; Chase's Case, 1 Bland's Ch. (Md.) 206, 17 Am. Dec. 277; Ferris v. Wilcox, 51 Mich. 105, 47 Am. Rep. 551, 16 N. W. 252; Shep-pard v. Wagner, 240 Mo. 409, 144 S. W. 394, 145 S. W. 420; Smith v. Hoff, 23 N. D. 37, Ann. Cas., 1914 C 1072, 135 N. W. 722; Worley v. Carter, 30 Okla. 642, 121 Pac. 669; Colwell v. Woods, 3 Watts (Pa.) 188, 27 Am. Dec. 345; Van Oehsen v. Brown, 148 Wis. 236, 134 N. W. 377.
89. Cosby v. Buchanan, 81 Ala. 574, 1 So'. 898; Sears v. Dixon, 33 Cal. 326; Gunn's Appeal from Commissioners, 55 Conn. 149, 10
Atl. 498; Bearss v. Ford, 108 111. 16; Radford v. Folsom, 58 Iowa, 473, 12 N. W. 536; Bennock v. Whipple, 12 Me. 346, 28 Am. Dec. 186; Nugent v. Riley, 1 Mete. (Mass.) 117, 35 Am. Dec. 355; Lund v. Lund, 1 N. H. 39, 8 Am. Dec. 29; Lane v. Shears, 1 Wend. (N. Y.) 433; Waters v. Crabtree, 105 N. C. 394, 11 S. E. 240. See Wilson v. Shoenberger's Ex'rs, 31 Pa. St. 295.