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 .
By the doctrine of "tacking," which has long prevailed in England, a mortgagee, having the legal estate, may, upon making a further advance or acquiring a further charge on the same land, tack or add the further charge to his original debt, and hold the legal estate as against intermediate incumbrances until he is satisfied in full; and, by an extension of the same doctrine, a third mortgagee, who has advanced his money without notice of a second mortgage or charge, may, on taking an assignment of the first mortgage, and thus acquiring the legal title, "tack" it to the third mortgage, and "squeeze out" the intervening mortgage or charge. The doctrine is based on the theory that the equities of the second and third incumbrances are equal, and that therefore the legal title will prevail.18a The third mortgage must, however, be without notice of the second mortgage or incumbrance at the time of making the advance, and it results from this requirement that in the United
If one accepts a mortgage in terms subject to another mortgage to a third person, he takes it subject to such mortgage as sub-seqently corrected by a court of equity on account of a mistake in the description. Herring v. Fitts, 43 Fla. 54, 99 Am. St. Rep. 108, 30
So. 804; Council Bluffs Lodge v. Billups, 67 Iowa, 674, 25 N. W. 846.
18a. Marsh v. Lee, 2 Vent. 337, 1 White & T. Lead Cas. Eq. 837, notes; Brace v. Malborough, 2 F. Wms. 491; 2 Robbins, Mortgages, 1219.
States, where constructive notice of the second incumbrance is given to the third incumbrancer by the record, there is no room for the application of the principle;19 and even apart from the question of notice, it could have no application in states in which a mortgage does not convey a legal title.
The doctrine of "consolidation," as applied to mortgages in England, consists in the right of the holder of two mortgages on different pieces of land, which belong to the same person, to retain each mortgage as a subsisting lien on the land until the debts secured by both the mortgages are paid.20 The equity of the doctrine, especially against innocent purchasers, has been frequently questioned, and by a modern enactment it applies to mortgages only when an intention that it shall apply is apparent.21 It has never been adopted in this country.22