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 .
27. That the assignee is entitled to such priority, see Cullum v. Erwin, 4 Ala. 452; Alabama Gold Life Ins. Co. v. Hall, 58 Ala. 1; Knight v. Ray, 75 Ala. 383; Farmers' Sav. Bank v. Murphree. - Ala.-, 76 So. 932; Wil-ber v. Buchanan, 85 Ind. 42 (legacy of part of debt); Park-hurst v. Watertown Steam Engine Co., 107 Ind. 594, 8 N. E. 635; Barkdull v. Herwig, 30 La. Ann. 618; Anderson v. Sharp, 44 Ohio St. 260, 6 N. E. 900 (dictum); Lawson v. Warren, 34 Okla. 94, 42 L. R. A. (N. S.) 183, Ann. Cas. 1914C. 139, 124 Pac. 46; Waterman v. Hunt, 2 R. I. 298 (semble); Thomas v. Linn, 40 W. Va. 122; McClintic v. Wise, 25 Gratt. Va. 448, 18 Am. Rep. 533. And see Van Rensselaer v. Stafford, Hopkins' Ch. (N. Y.) 569, 9 Cow. 316.
That the assignee is not entitled to priority, see McClanahan v. Chambers, 1 T. B. Mon. (Ky.) 43 (compare For wood v. Dehoney, 5 Bush (Ky.) 174; Dixon v. Clay-ville, 44 Md. 573; Jennings v. Moore. 83 Mich. 231, 21 Am. St. Rep. 601, 47 N. W. 127; Wilson v. Eigenbrodt 30 Minn. 4, 13 N. W. 907; Green v. Morris, 117 Miss. 635, 78 So. 550; Donley v. Hays, 17 Serg. & R. (Pa.) 400 (Gibson, C. J., dissenting); Patrick's Appeal, 105 Pa. 356; Keys v. Wood, 21 Vt. 331. And see Lane v. Davis, 14 Allen (Mass.) 225.
28. In McClintic v. Wise. 25 Grat. (Va.) 448, 18 Am. Rep. 533. it is expressly denied that it is so based.
29. Gibson, C. J., in his dissenting opinion in Donley v. Hays, 17 Serg. & R. (Pa.) 400. admits that the assignor is not personally liable as upon a warranty of payment, and asserts that there is an equity in favor of either on the personal liability of the transferor or on a covenant by him.30
As to the respective rights of transferees of different parts of the debt, usually assignees of different notes or bonds given for the debt, in case the mortgaged land is not sufficient to pay the whole debt secured, the cases are likewise in distinct conflict.. In the majority of the states, the transferees of parts of the debt secured are regarded as entitled to share in the proceeds of the mortgaged land in proportion to the amounts of their respective claims, without reference to the time of their maturity.31 The courts adopting this rule find its justification in the well recognized maxim that "equality is equity," and in its accordance with what may be presumed to be the intention of the parties to a mortgage, that it shall secure one part of the debt to the same extent as any other part.
In some states the rule has been adopted that, if parts of the debt in the hands of different persons mature at different times, as is usually the case when notes are given, they are entitled to priority, as regards the benefit of the mortgage, in the order of their maturity.32 This rule is, by the courts adopting it, the assignee based on a moral obl'gation upon the part of the assignor.
30. Ante, Sec. 625.
31. Lovell v. Cragin, 136 U. S. 130, 147, 34 L. Ed. 372; Penzel v. Brookmire, 51 Ark. 105, 14 Am. St. Rep. 23, 10 S. W. 15; Grattan v. Wiggins, 23 Cal. 16; Georgia Realty Co. v. Bank of Covington, 19 Ga. App. 219, 91 S. E. 267; Moore .v. Moberly, 7 B. Mon. (Ky.) 299; Dixon v. Clayville, 44 Md. 573; Eastman v. Foster, 8 Mete. (Mass.) 19; Jennings v. Moore, 83 Mich. 231, 21 Am. St. Rep. 601, 47 N. W. 127; Wilson v. Eigenbrodt, 30 Minn. 4, 13 N. W. 907; Parker v. Mercer, 6 How (Miss.) 320, 38 Am. Dec. 438; State Bank of O'Neill v. Mathews, 45 Neb. 659, 50 Am. St. Rep. 565, 63 N. W. 930; Page v. Pierce, 26 N. H. 317; Granger v. Crouch, 86 N. Y. 494 (semble); Donley v. Hays, 17 Serg. & R. (Pa.) 400; Perry's Appeal, 22 Pa. St. 43, 60 Am. Dec. 63; Gordon v. Hazzard, 32 S. C. 351, 17 Am. St. Rep. 857, 11 S E. 100; First Nat. Bank of Aberdeen v. Andrews, 7 Wash. 261, 38 Am. St. Rep. 885, 34 Pac. 913.
32. Wilson v. Hayward, 6 Fla. 171; Funk v. McRtynold's Adm'rs, sometimes based on the theory that the right of the holder of a part of the debt, in case of its non payment at maturity, to proceed immediately to foreclose for the purpose of satisfying his claim, without reference to any other part subsequently to become due, entitles him to a preference as regards the distribution of the security; while sometimes it is said that the holders of distinct parts of the debt are in effect distinct and separate mortgagees, and that those whose installments last fall clue are to be regarded as subsequent mortgagees. The difficulty with the latter defense of the doctrine appears to be that it involves an assumption not warranted by the facts. One who makes a mortgage securing several notes does not intend to make, nor does he make, as many mortgages as there are notes, and the fact that the notes pass into different hands cannot change the character of the mortgage in this respect. As has been judicially remarked, "the different installments are not secured by different mortgages of different dates, but by one mortgage executed equally for the benefit of all the instalments. The date of the lien is the date of the mortgage, and not the date of the maturity of the debt."33 As regards the former theory, that the right of the holder of one installment to foreclose immediately on non payment entitles him to priority as against owners of other installments, it appears to assume that the later installments cannot share in the benefit of the foreclosure, that, in other words, the holder of the claim first due can, by instituting the foreclosure proceeding, exclude the holders of the other claims from sharing in the security until his claim is satisfied. It would seem, however, that the owners of the installments subsequently falling due would, by the practice in many states, have a right to insist upon being made parties to the foreclosure proceeding and to have this carried through for the satisfaction of such later installments as well as of the earlier one, provided at least they become due before the decree for sale, and perhaps, in some circumstances, to have the decree reopened for this purpose.34 It is, in fact, only by assuming that the holder of the installment first falling due is entitled to priority, that a court can well justify itself, on foreclosure by such holder, in ignoring the claims of the holders of other installments to share equally in the proceeds of sale.
33 111. 481; State Bank v. Tweedy, 8 Blackf. (Ind.) 447, 46 Am. Dec. 486; Minor v. Hill, 58 Ind. 176, 26 Am. Rep. 71; Grapengether v. Fejervary, 9 Iowa, 163, 74 Am. Dec. 330; Isett v. Lucas, 17 Iowa, 503, 85 Am. Dec. 572; Mitchell v. Ladew, 36 Mo. 526, 88 Am. Dec. 156; Winters v. Franklin Bank of Cincinnati, 33 Ohio St. 250; Anderson v. Sharp, 44 Ohio St. 260, 6 N. E. 900; Shaw v. Crandon State Bank, 145 Wis. 639, 129 N. W. 794.
33. Mitchell, J., in Wilson v. Eigenbrodt, 30 Minn. 4, 13 N. W. 907.
It has been decided, in at least three of the states which recognize the rule that the date of maturity fixes the order of priority, that its application is excluded by a provision that, on default in payment of one of several notes, they shall all become due, the theory being that in such case the notes in effect all mature at the same time.35 In others of these states a contrary view has been adopted, on the ground that to give such an effect to a provision of this character would render the value of the notes uncertain and enable the mortgagor and the holder of the last note to destroy, by collusion, the priority otherwise existing in favor of the first note.36 And this view has in one case been based on the ground that such a provision is intended merely to enable the mortgage fund to be all distributed at one time, and not to change the order of priority.37
34. Post, Sec. 654, notes 91-99.
35. Bushfield v. Meyer, 10 Ohio St. 334; Pierce v. Shaw, 51 Wis. 316, 8 N. W. 209; Whitehead v. Morrill, 108 N. C. 65, 12 S. E. 894.
36. Leavitt v. Reynolds, 79
Iowa, 348, 7 L. R. A. 365, 44 N. W. 567; Horn v. Bennett, 135 Ind. 158, 24 L. R. A. 800, 34 N. E. 321, 956. 37. Hurck v. Erskine, 45 Mo 484.
In states in which it has been decided that, in case of the transfer of part of the debt, the transferor retaining the other part, the transferee is entitled to satisfaction of his part out of the mortgaged property before the transferor can share therein,38 it might have been anticipated that as between transferees of different parts of the debt, their priorities would be determined by the respective dates of the transfers. But in only two of such states, apparently, has this view been asserted.39 If, upon transfer of part of the debt, the part retained by the transferor is entitled to share in the security only after satisfaction of the part transferred, it is difficult to see how the part so retained is entitled to any greater equity when subsequently transferred to another. The equity of the first transferee being fixed upon the transfer, it should not be affected by the act of the transferor in transferring, without his consent, the balance of the debt to another person, and the transferor should not be able to transfer to another any greater right than he himself had. The second transferee would ordinarily have constructive notice of the rights of the first transferee, since he knows that there is a part of the debt not transferred to him, and it is his duty to ascertain by inquiry in whose hands such part is outstanding. Ordinarily the different parts of the mortgage debt are represented by separate notes and bonds,. and ono purchasing one of such notes or bonds would, in the exercise of ordinary prudence, inquire as to the others, and finding these in the hands of a prior transferee, he would take with notice of such prior transferee's superior claim.
In case the mortgage itself contains stipulations as to the respective priorities of different parts of the debt secured, these will no doubt control as between the transferees of those parts. And any stipulation entered into on the making of a transfer of any part of the debt, giving priority to the part transferred over the part retained, will be binding on a subsequent transferee of the latter part, who takes with notice thereof,40 and the record of the previous transfer of a part of the debt with the mortgage security would ordinarily be sufficient to charge him with notice.41 In states in which an assignee of a chose in action takes subject to equities in favor of third persons,42 a subsequent transferee of a part of the debt would take subject to such an agreement irrespective of whether he has notice thereof.43
38. Ante, this section, notes 24-29.
39. Cullum v. Erwin, 4 Ala.
452; Alabama Gold Life Ins. Co. v. Hall, 58 Ala. 1; Gordon v. Piz-liugu, 27 Gratt. (Va.) 835.