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 number of courts have adopted the view that, if the mortgaged land is transferred by the mortgagor to another, and the mortgagor thereafter, by his absence from the state or acknowledgment of the debt, prevents the running of the statute of limitations as against an action to enforce his personal liability, he thereby prevents the running of the statute in favor of his transferee as against a suit to foreclose the mortgage.70-71 Other courts have adopted the contrary view, that the transferee's right to assert the bar of the statute as against a proceeding to foreclose cannot be affected by the acts of the mortgagor subsequent to the transfer,72 provided, at least, the mortgagee can be regarded, by reason of the record of the transfer of the land or otherwise, as having notice that the mortgagor has disposed of the property.73
70-71. Rickey v. Sinclair, 167 111. 184, 47 N. B. 364; Murray v. Emory, 187 111. 408, 58 N. E. 327; Clinton County v. Cox, 37 Iowa, 570; Robertson v. Stuhlniiller, 93 Iowa, 326, 61 N. W. 986; Schmuc-ker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; Murdock v. Waterman, 145 N. Y. 455, 27 L. R. A. 418, 39 N. E. 829 (dictum); Mack v. Anderson, 165 N. Y. 529, 59 N. E. 289 (dictum); Falwell v. Hen-ing, 78 Tex. 278, 14 S. W. 613; Kendall v. Tracy, 64 Vt. 522, 24 Atl. 1118; Hughes v. Edwards, 9 Wheat. (U. S.) 489, 6 L. Ed. 142; See Ewell v. Daggs, 108 U. S. 143, 27 L. Ed. 682.
72. Wood v. Goodfellow, 43 Cal. 185; California Bank v. Brooks, gagee, such title may remain in the mortgagee though he has assigned the debt, but in the view of a court of equity such legal title is held for the exclusive benefit of the holder of the debt, and consequently the security in its beneficial, as distinct from its purely legal, aspect, belongs to the latter.
126 Cal. 198, 59 Pac. 302; Cook v. Union Trust Co., 106 Ky. 803, 45 L. R. A. 212, 51 S. W. 600; Bush v. White, 85 Mo. 339; Fowler v. Wood, 78 Hun. (N. Y.) 304, 28 N. Y. Supp. 976, 150 N. Y. 584, 44 N. E. 1124; Colonial & U. S. Mortgage Co. v. Northwest Thresher Co., 14 N. D. 147, 70 L. R. A. 814, 116 Am. St. Rep. 642, 8 Ann. Cas. 1160; Arthur v. Screven, 39 S. C. 77, 17 S. E. 640; Boucofski v. Jacobsen, 36 Utah, 165, 26 L. R. A. (N. S.) 898, 104 Pac. 117; Ceorge v. Butler, 26 Wash. 456, 57 L R. A. 396, 90 Am. St. Rep. 756, 67 Pac. 263.
73. See Filipino v. Trobock, 134 Cal. 441, 66 Pac. 587; Hibcr-nia, etc., Ass'n v. Farnham, 153
The cases of the first class are sometimes based on the theory that, as the mortgage is merely incident to the debt, the right to enforce the mortgage must endure so long as the right to recover the debt endures. But that the mortgage is merely incidenl to the debt involves no such consequence. It is perfectly possible to discharge the mortgage in whole or in pari without discharging the debt. The principal can endure without the incident, though the incident can not endure without the principal. Others of these cases appear to regard the conclusion asserted therein as a necessary result of the proposition that the transferee takes the property subject to the burden to which it was subject in the hands of the mortgagor, without explaining why this should be so.74 The burden subject to which he takes is the mortgage lien, with the normal right to enforce that lien within the time fixed by the statute, and his burden should not be extended in duration, any more than in amount, by the course of conduct which the mortgagor may subsequently choose to adopt. Unless the language of the statute of limitations renders such a construction imperative, there would seem to be little justice or policy in making the right of one person to assert the bar of the statute dependent upon the right of another person, in an entirely different class of action, to assert such a bar, and especially is this the case when such other's inability to assert the bar is the result exclusively of his own individual conduct.75 Even in jurisdictions which have adopted, for most purposes, the doctrine that the action of the mortgagor after his transfer may operate to extend the duration of the lien as against the transferee, this doctrine would not be applied, it seems, if the debt is barred at the time of the transfer.76
Cal. 578, 96 Pac. 11; Paine v. Dodds, 14 N. D. 189, 116 Am. St. Rep. 674, 103 N. W. 931; Denny v. Palmer, 26 Wash. 4G9, 90 Am. St. Rep. 766, 67 Pac. 268.
74. Hughes v. Edwards, 9 Wheat. (U. S.) 489, 6 L. Ed. 142;
Mack v. Anderson, 165 N. Y. 529, 59 N. E. 289; Kendall v. Tracy, 64 Vt. 522, 24 Atl. 1118.
75. The contrary view is upheld in a well written editorial note in 9 Columbia Law Rev. at p. 718.
There are occasional decisions to the effect that a transferee of mortgaged land cannot, by part payment or other acknowledgment of the debt, affect the running of the statute of limitations against the mortgagor's personal liability.77 But there are also decisions that part payment by a transferee, who has assumed the debt, may be regarded as on behalf of the mortgagor's indebtedness,- so as to interrupt the running of the statute.78
A part payment by a transferee of part of the land has been held not to arrest the operation of the statute in favor of a transferee of another part, who had not assumed any personal liability for the debt.79