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 .
81. Bethlehem v. Annis, 40 N. H 34, 77 Am. Dec. 700; Bryant v. Erskine, 55 Me. 153; Daniels v. Eisenlord, 10 Mich. 454.
82. Post, Sec. 607(c).
83. Locke v. Moulton, 96 Cal. 21, 30 Pac. 957; Scott v. Field, 7 Watts (Pa.) 360.
84. Flagg v. Mann, 2 Sumn.
(U. S.) 486, 534, Fed. Cas. No. 4847; Todd v. Todd, 164 Cal. 255, 128 Pac. 413; Twiggle v. Berkeley, 101 Va. 83, 43 S. E. 199; Dex-te Horton Nat. Bank v. Seattle Homeseeker's Co., 82 Wash. 480, 144 Pac. 691; Schriber v. Le Clair, 66 Wis. 579, 29 N. W. 570, 889; Beebe v. Wisconsin Mortgage Loan Co., 117 Wis. 328, 93 N. W. 1103; King v. King, 3 P. Wms. 358; Allenby v. Dalton, 5 L. J. O. S. K. B. 312; Yates v. Aston, 4 Q. B. 182.
85. Ante, Sec. 606, notes 69, 70.
Of the mortgagor or another person. An express provision that there shall be no personal liability, while valid and effective, does not affect the validity of the mortgage,86 the debt being in such case regarded as due by the land itself. So, in the majority of states, the mortgage remains valid, though an action to enforce the personal liability of the mortgagor is barred by limitations.87 And the fact that the maker of the notes secured has been discharged from personal liability in a bankruptcy proceeding,88 or that the note has been avoided by an alteration,89 does not affect the lien of the mortgage or the right to enforce it.
A mortgage is perfectly valid though made to secure an indebtedness to a person other than the mortgagee.90
86. Blake v. Askew & Brum-mett, 112 Ark. 514, 166 S. W. 965; Bacon v. Brown, 19 Conn. 29; Hoag v. Starr, 69 111. 362; Evans v. Holman, 244 111. 596, 91 N. E. 723; Gregory v. Van Vorst, 85 Ind. 108; Elmore v. Higgins, 20 Iowa, 250; Allison v. Hollem-beck, 138 Iowa, 479, 114 N. W. 1059; Mills v. Darling, 43 Me. 565; Engley v. Sproul, 115 Me. 463, 99 Atl. 443; Rice v. Rice, 4 Pick. (Mass.) 349; Cook v. Johnson, 165 Mass. 245; Niggeler v. Maurin, 34 Minn, 118, 24 N. W. 369; Seieroe v. First Nat. Bank, 50 Neb. 612, 70 N. W. 220; Mack v. Austin, 95 N. Y. 513; Mooney v. Byrne, 163 N. Y. 86, 57 N. E. 163; In re Nace's Estate, 52 Pa. Super. Ct. 607; Sappington v. Owens, 92 Wash. 632, 159 Pac. 785; Davis v. Demming, 12 W. Va. 246; South Sea Co. v. Duncomb, 2 Strange, 919; Mathew v. Black-more, 1 Hurlst. & N. 762.
87. Post, Sec. 640(f).
88. Bush v. Cooper, 26 Miss. 599; Brown v. Hoover, 77 N. C. 40; Wilson v. Russell, 13 Md. 494, 71 Am. Dec. 645. But see, as to the effect of a release from personal liability, Bernheim v. Pes-son, 143 La. 609, 79 So. 23.
89. Plyler v. Elliott, 19 S. C. 257; Smith v. Smith, 27 S. C. 166, 13 Am. St. Rep. 633, 3 S. E. 78; Cheek v. Nall, 112 N. C. 370, 17 S. E. 80.
90. See Teal v. Walker, 111 U. S. 242, 28 L. Ed. 415; Chambers v. Prewitt, 172 111. 615, 50 N. E. 145; Newton Sav. Bank v. Howerton, 163 Iowa, 677, 145 N. W. 292; Hanrion v. Hanrion, 73 Kan. 25, 117 Am. St. Rep. 453, 84 Pac. 381; Albion State Bank v. Knickerbocker, 125 Mich. 311, 84 N. W. 311; Perkins v. Trinity Realty Co., 69 N. J. Eq. 723, 61 Atl. 167, 71 N. J. Eq. 304, 71 Atl. 1135; Robbins v. Robbins, 89 N. Y. 251; Lawrenceville Cement Co. v. Parker, 60 Hun (N. Y.) 586, 15 N.
Mortgage by married woman. The question has occasionally arisen whether a mortgage executed by a married woman upon her separate property, to secure a debt for which she cannot be made personally liable, is valid and enforcible. In case the debt is the debt of another as well as of herself, the mortgage has, perhaps, invariably, been regarded as valid, this presenting the simple case of a mortgage made by one to secure the debt of another.91 If, however, the debt secured is one for which no other person is liable, a more difficult question is presented. If the debt can be regarded as non existent, because such as cannot be incurred by a married woman, it is difficult to see how the mortgage, made to secure such non existent debt, can be regarded as effective.92 If, on the other hand, the debt is such as the wife has a right to incur with reference to her separate estate, and which, if so incurred, a court of equity will enforce against such estate, the debt cannot be regarded as non existent, although she is not personally liable thereon. The courts have occasionally adopted this view, to the extent of regarding the mortgage as sufficient to show that the debt was incurred with reference to the separate property which the mortgage purported to cover, so that equity would charge that property with the debt.93
Y. Supp. 577, 133 N. Y. 622, 30 N. E. 1150; Saylors v. Saylors, 3 Heisk. (Tenn.) 525.
91. Johnson's Adm'r v. Ward, 82 Ala. 486, 2 So. 524; Kleindienst, 18 Dist. Col. 356; Cook v. Land-rum, 26 Ky. L. Rep. 813, 82 S. W. 585; Bartlett v. Bartlett, 4 Allen (Mass.) 440; Russ v. Win-gate, 30 Miss. 440; Conway v. Wilson, - (N. J. Ch.) -, 11 Atl. 607; Haffey v. Carey, 73 Pa. St. 431.
92. To this effect see Hodges v. Price, 18 Fla. 342; Heburn v.
Warner, 112 Mass. 271, 17 Am. Rep. 86. The latter case is criticized at length in 10 Am. Law Rev. at p. 371. In Burr v. Beckler, 264 111. 230, 106 N. E. 206, the note of the wife being invalid by the law of the state where it was executed, the mortgage securing it in another state was regarded as nugatory.
93. Patton v. Kinsman, 17 Iowa, 428; Heburn v. Warner, 112 Mass. 271, 17 Am. Rep. 86; Van Cott v. Heath, 9 Wis. 516; See
It is not entirely clear why, if the debt can be regarded as existent for the purpose of being charged on the property, it should not be so regarded for the purpose of being secured by the mortgage.94
(c) Bond or note. Formerly it was customary in England, for reasons connected with the enforcement of the personal claim against assets in the hands of the heir or devisee, in case of insufficiency of the mortgage security, that a bond for the payment of the sum so-cured be executed by the mortgagor, but such reasons are, as a result of the statutes making all assets of a decedent liable for his debts,94a no longer effective. And at the present time, in that jurisdiction, the execution of a separate instrument involving a personal liability is unusual. In this country the former English custom of the execution of a personal bond appears originally to have been adopted, and this custom still prevails in New York and Pennsylvania, and perhaps other states. Generally, however, the use of a . bond for this purpose has been supplanted by the custom of signing a note, or a series of notes falling due at different times, in order to evidence a personal obligation to pay the sum secured by the mortgage.