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 has usually been considered that the mortgage creditor may assert his different rights at the same time, pursuing concurrently his suit in equity to foreclose and his action at law to enforce the personal liability on the debt.2 But occasionally it has been decided that, in so far as the mortgage creditor may be authorized by statute to obtain a personal decree in the foreclosure proceeding,3 he is sufficiently protected thereby, and should not usually be allowed to maintain a separate action to enforce the personal liability while the foreclosure proceeding is in progress.4
99. Ballinger v. Bourland, 87 111. 513, 29 Am. Rep. 69; Converse v. Ware Sav. Bank, 152 Mass. 407, 25 N. E. 733; Pilok v. Bednarski, 230 Mass. 56, 119 N. E. 360; Fa-gan v. People's Savings & Loan Ass'n, 55 Minn. 437, 57 N. W. 142; Helweg v. Heikamp, 20 Mo. 569; Barber v. Cary, 11 Barb. (N. Y.) 549; Wynne v. State Nat. Bank of Ft. ,Worth 82 Tex. 378, 17 S. W. 918; Markey v. Langley, 92 U. S. 142, 23 L. Ed. 701. It has been held that a statute requiring the surplus to be paid to the mortgagor or his "assigns" applies in favor of second mortgagees (Nichols v. Tingstad, 10 N. D. 172, 86 N. W. 694) and execution creditors (Re Abbott & Medcalf, 20 Ont. Rep. 299).
1. Cope v. Wheeler, 41 N. T. 303; Reynolds v. Hennessy, 15 R. I. 215, 2 Atl. 701; Stoever v. Stoever, 9 Serg. & R. (Pa.) 434; Ballinger v. Bourland, 87 111. 513, 29 Am. Rep. 69. But that an action for money had and received does not lie in favor of a subsequent lienor, see Norman v. Hall-sey, 132 N. C. 6, 43 S. E. 473.
2. Burnell v. Martin, 2 Dougl. 417; Booth v. Booth, 2 Atk. 543; Gilman v. Illinois & M. Tel. Co., 91 U. S. 603, 616, 23 L. Ed. 405; Cber v. Gallagher, 93 U. S. 199, 23 L. Ed. 829; Micou v. Ashurst, 55 Ala. 607; Morris v. Fidelity Mortgage Bond Co., 187 Ala. 262,
65 So. 810; Very v. Watkins, 18 Ark. 546; Coit v. Fitch. Kirby (Conn.) 254, 1 Am. Dec. 20; Van-sant v. Allmon, 23 111. 30; Bar-chard v. Kohn, 157 111. 579, 29 L. R A. 803, 41 N. E. 902; Brown v. Cascaden, 43 Iowa, 103; Hodgden v. Roy, 102 Kan. 197, 169 Pac. 1143; Copperthwait v. Dummer, 18 N. J. L. 258; Ellis v. Hussey,
66 N. C. 501; Spence v. Union Central Life Ins. Co., 40 Ohio St. 517; Priddy v. Hartsook, 81 Va. 67.
3. Post, note 6.
In foreclosure proceeding. Formerly, in case the proceeds of the sale of the property were insufficient to pay the obligation, the only mode in which the mortgagee could enforce the mortgagor's personal liability was by a separate action at law against the mortgagor.5 Of recent years, however, statutes have been passed in many states authorizing the entry in the foreclosure proceeding of a personal judgment or decree for the deficiency against the mortgagor or other person liable for the debt;6 and in such states the mortgage creditor is usually subject to restrictions of a more or less stringent character upon his right to institute separate proceedings to enforce the personal liability and to foreclose.7
4. Anderson v. Pilgram, 30 S. C. 499, 4 L. R. A. 205, 14 Am. St. Rep. 917, 9 S. E. 587; Franklin v. Hersch, 3 Tenn. Ch. 467.
5. Hunt v. Lewis, 4 Stew. & P. (Ala.) 138; Webber v. Blanc, 39 Fla. 224, 22 So. 655; Johnson v. Shepard, 35 Mich. 115; Stark v. Mercer, 3 How. (Miss.) 377; Fithian v. Monks, 43 Mo. 502, 519; Klapworth v. Dressier, 13 N. J. Eq. 62, 78 Am. Dec. 69; Dunkley v. Van Buren, 3 Johns. Ch. (N. Y.) 330.
6. 1 Stimson's Am. St. Law, Sec. 1926; 9 Enc. Pl. & Pr. 454; 2 Jones, Mortgages, c. 38.
7. The statute sometimes provides that there shall be but one action for the recovery of a debt secured by mortgage. See Bart-lett v. Cottle, 63 Cal. 366; Mc-Kean v. German-American Sav. Bank, 118 Cal. 336, 50 Pac. 656;
Jensen v. Lichtenstein, 45 Utah, 320, 145 Pac. 1036. In some states, by statute, during the pendency of an action at law for the recovery of the debt, a foreclosure suit cannot be maintained, and a subsequent foreclosure suit is allowed only if execution on a judgment for the debt is returned unsatisfied. 1 Stimson's Am. St. Law, Sec. 1932 (B). In other states, while a foreclosure suit is pending, an action on the debt cannot be brought except by leave of court. 1 Stimson's Am. St. Law, Sec. 1932 (D). And the statute sometimes forbids the bringing of a subsequent action on the debt, after a decree of foreclosure, the creditor having a right to a personal decree in the foreclosure proceeding. Code Civ. Proc. N. Y., Sec. 1628.