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 mortgage is not necessarily discharged by reason of the fact that another mortgage upon the same property is subsequently executed to secure the same debt, 28 and consequently the first mortgage may still retain its effectiveness, for the purpose of protecting the mortgage creditor against an intervening incumbrance,29 of excluding the claim of the mortgagor's wife under a statute passed after the making of the first mortgage and before the making of the second,30 or for other purposes.31
In the absence of any evidence of an intention to extinguish or supersede the prior mortgage, it remains in full force and effect,32 since the mere taking of
26. Gault v. McGrath, 32 Pa. St. 392; DeCottes v. Jeffers, 7 Fla. 284 (notes reduced and then increased); Brinckerhoff v. Lansing, 3 Barb. Ch. (N. Y.) 293, 49 Am. Dec. 175.
27. Metz v. Todd, 36 Mich. 473; Campion v. Whitney, 30 Minn. 177, 14 N. W. 806; Smith v. Townsend, 25 N. Y. 479; Peoples Insurance Co. v. McDonnell, 41 Ohio St. 650; Ayres v. Wattson, 57 Pa. St. 360; and see Benneson v. Savage, 130 111. 352, 22 N. E. 838; Jenkins v. Daniel, 125 N. C. 161, 74 Am. St. Rep. 632, 34 S. E. 239.
28. Gerrish v. Gerrish, 62 N II. 397; Ladd v. Wiggin, 35 N. II. 421, 69 Am. Dec. 551; Burdett v. Clay, 8 B. Mon. (Ky.) 827; Springer v. Bradley, - (Mo.) -, 188 S. W. 175; Wilkes v. Miller, 156 N. C. 428, 72 S. E. 482; and cases cited ante, Sec. 638(h), noto 19.
29. Higman v. Humes, 127 Ala. 4C4, 30 So. 733; Gregory v. Thomas, 20 Wend. (N. Y.) 17; Young v. Shaner, 73 Iowa, 555, 5 Am. St. Rep. 701, 35 N. W. 629; Walters v. Walters, 73 Ind. 425.
30. Pouder v. Ritzinger. 119 Ind. 597, 20 N. E. 654; Burns v. Thayer, 101 Mass. 426.
31. Swift v. Kraemer, 13 Cal. 526.
32. Higman v. Humes, 127 Ala. 404, 30 So. 733; White v. Stevenother security has never been regarded as affecting that previously given.33 And even though the first mortgage is satisfied or released, if this done at the time of the making of the second mortgage and as a part of the same transaction, the courts have tended to regard it as done for the purpose of such second mortgage only, and as consequently not letting in an intervening claim.34 In accordance with the decisions referred to it has been held that a mortgage for purchase money does not lose its priority by the subsequent taking of another mortgage in lieu thereof.35 And there is a decision to the effect that- when there is a sale under a senior mortgage, the mortgage given by the purchaser to secure the purchase money enjoys the same priority as against the junior mortgage as did the mortgage under which the sale was made.36 On the other hand, it has been said that the execution of a receipt for the debt secured will raise a presumption of extinguishment of the first mortgage,37 and an agreement that it shall be extinguished has been accorded full effect.38-39 son, 144 Cal. 104, 77 Pac. 828; Christian v. Newbury, 61 Mo. 446.
33. Gregory v. Thomas, 20 Wend. (N. Y.) 17; Ladd v. Wiggin, 35 N. H. 421, 69 Am. Dec. 551.
34. Shurn v. Wilkinson, 131 Ark. 167, 198 S. W. 279; Swift v. Kraemer, 13 Cal. 526; Packard v. Kingman, 11 Iowa, 219; Burns v. Thayer, 101 Mass. 426; American Sav. Bank & Trust Co. v. Helgen, 67 Wash. 572, 122 Pac. 26. But see Gray v. Gilliam, 166 Ky. 194, 179 S. W. 22; Stanley v. True, 114 Me. 503, 96 Atl. 1057. In Bruse v. Nelson, 35 Iowa, 157, and Young v. Shaner, 73 Iowa, 555, 5 Am. St. Rep. 701, 35 N. W. 629, it was held that the cancellation of the first mortgage at the time of taking the second, was to be regarded as voidable by reason of mistake of fact, if the mortgagee was ignorant of an intervening incumbrance.
35. Austin v. Underwood, 37 Hi. 438, 87 Am. Dec. 254; Hassell v. Hassell, 129 Ala. 326, 29 So. 695. So in the case of the acceptance of a mortgage in place of the vendor's lien. Jones v. Davis, 121 Ala. 348, 25 So. 789.
36. Threefoot v. Hillman, 130 Ala. 244, 89 Am. St. Rep. 39, 30 So. 513.
37. Higman v. Humes, 127 Ala. 404, 30 So. 733.
38-39. Lewis v. Starke. 10 Sm. & M. (Miss.) 120; Benton Land
Sec. 642. Express release or certificate of satisfaction
- (a) General considerations. Although, as above stated, the discharge of the obligation secured, whether by payment or otherwise, extinguishes the mortgage lien, and such discharge can be shown, in defense to a proceeding to enforce the mortgage, by evidence of the same character as in an action to enforce personal liability under the obligation secured, still it is most important, for the protection not only of the present owner of the property, but also of future owners, that evidence of the discharge of the obligation be given the same permanence and accessibility as was given to the creation of the lien, by its entry upon the public records. Recognizing the necessity of such appearance upon the records of the discharge of the obligation secured, the legislatures of the various states have provided that the mortgagee or his assignee shall, upon request of the mortgagor or other person interested in the land, execute a release or other instrument evidencing satisfaction of the mortgage obligation, available for record, or shall enter or have entered on the records an acknowledgment of satisfaction of the obligation. In most of the states provision is made for the entry of satisfaction upon the margin of the record of the mortgage itself, this entry being made in same states by the holder of the mortgage and in some by the clerk or register of deeds after acknowledgment of satisfaction by such holder.
In case the mortgagee or his assignee fails to execute a release or the statutory certificate of satisfaction, the owner of the land may, by a proceeding in equity, or an equivalent statutory proceeding, compel this to be done.40 And the statutes of many states impose a
Co. v. Zeitler, 182 Mo. 251. 70 L. R. A. 94, 81 S. W. 193; Chattanooga First Nat. Bank v. Radford Trust Co., 80 Fed. 569, 26 C.