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 .
It appears to be well established that a creditor whose debt is secured by a mortgage may, without relinquishing his lien, give priority to one whose incumbrance would otherwise be junior to his own.59 The courts, however, in giving effect to such a relinquishment of priority, do not consider the legal principles involved. If the prior mortgagee makes a contract with a junior incumbrancer, on a valid consideration, not to assert his mortgage as against the junior incumbrance, it is but to be anticipated that a court of equity would not allow him, in violation of his contract, to enforce his under which the mortgages were given.
57. Greene v. Warnick, 64 N. Y 220. See Walker v. Buffandeau, 63 Cal. 312.
58. Rhoades v. Canfield. 8 Paige (N. Y.) 545 (agent taking mortgages for different principals) ; Saneley v. Crapenhoft, 1 Neb. (Unof.) 8. 95 N. W. 352; Vredenburgh v. Burnet, 31 N. J. Eq. 229 (mortgages to same person).
59. Boiling v. Roman, 95 Ala. 518, 10 So. 553; Joralmon v. Mc-Phee, 31 Colo. 26, 71 Pac. 419; Mullanphy Sav. Bank v. Schott, 135 111. 655, 25 Am. St. Rep. 401,
26 N. E. 640; McCaslin v. Advance Mfg. Co., 155 Ind. 298, 58 N. E. 68; Rose v. Provident Savings, Loan & Investment Ass'n, 28 Ind. App. 25, 62 N. E. 293; Dye v. Forbes, 34 Minn. 13, 24 N. W. 309; Barnum v. Bobb, 68 Mo. 619; Loewen v. Forsee, - (Mo.) -, 35 S. W. 1138; Brown v. Barber, 244 Mo. 138, 148 S. W. 892; Shaw v Abbott, 61 N. H. 254; Mut. Life Ins. Co. v. Sturges, 33 N. J. Eq. 328; Hendrickson v. Wooley, 39 N. J. Eq. 307; Stover v. Hellyer, 68 N. J. Eq. 734, 62 Atl 698; Frost v Yonkers Sav. Bank, 70 N. Y. 553, 26 Am. Rep. 327; Taylor v. Wing, 84 N. Y. 471; Raleigh Nat.
3 R. P.-19 mortgage to the detriment of such incumbrance. In the absence, however, of a contract on valid consideration, the "waiver" of priority would seem properly to be effective only on the theory of estoppel, and conceding this to be the case, it would be necessary that the junior incumbrancer should have changed his position by reason of the language or conduct of the senior incumbrancer in order to deprive the latter of his preexisting priority. A difficulty in the application of the doctrine of estoppel in this connection would seem to exist, however, by reason of the general rule that a mere statement of intention is not sufficient to form the basis of an estoppel.60
One who has a mortgage on land which is duly recorded is under no obligation to inform a subsequent purchaser or mortgagee of his mortgage, and is consequently, by his failure to do so, not estopped to assert the mortgage as against the latter.61 One may however, by misrepresentations to an intending purchaser or mortgagee in regard to the existence or amount of his mortgage, be estopped thereafter to assert it as against the person deceived.62
Bank v. Moore, 94 N. C. 734; Horner v. Scott, 242 Pa. 432, 89 Atl. 555; Parker v. Parker, 52 S. C. 382, 29 S. E. 805; Clason v. Shepherd, 6 Wis. 369.
60. Bigelow, Estoppel (6th Ed.) 636; Ewart, Estoppel, 68; 16 Cyclopedia Law & Proc. 752 But there seems to be some authority in this country to the effect that a declaration of an intention not to enforce an existing right may operate by way of estoppel. See dictum in Union Mut Life Ins. Co. v. Mowry, 96 U. S. 544, 546, 24 L. Ed. 674; Faxton v. Faxon, 28 Mich. 159; Banning v. Kreiter, 153 Cal. 33, 94 Pac. 246.
61. Mayo v. Cartwright, 30 Ark. 407; Carter v. Champion, 8 Conn. 549, 21 Am. Dec. 695; Clabaugh v. Byerly, 7 Gill (Md.) 354, 48 Am. Dec. 575; Collier v. Miller, 137 N. Y. 332, 33 N. E. 374; Brincker-hoff v. Lansing, 4 Johns. Ch. (N. Y.) 65, 8 Am. Dec. 538. See Tur-man v. Bell, 54 Ark. 273, 26 Am. St. Rep. 35, 15 S. W. 886; Palmer v. Palmer, 48 Vt. 69.
62. Freeman v. Brown, 96 Ala. 301, 11 So. 249; Lasselle v. Barnett. 1 Blackf. (Ind.) 150, 12 Am. Dec. 217; Platt v. Squire, 12 Mete. (Mass.) 494; Newman v. Mueller, 16 Neb. 523, 20 N. W. 843; Morris v. Beecher, 1 N. D.