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 .
40. Chase v. Woodbury, 6 Cush. (Mass.) 143; Pollard v. Noyes, 60 N. H. 184; Henderson v. Truitt, 95 Ind. 309; Clark v. Warren, 55 Ga. 575; Holcomb v. Holcomb, 2 Barb. (N. Y.) 20. See iwst, Sec. 646, note 7.
41. Cheever v. Fair, 5 Cal. 337; Sanford v. Hill, 46 Conn. 42; Cum-ming v. cumming, 3 Ga. 460; Iglehart v. Crane, 42 111. 261; Sheperd v. Adams, 32 Me. 63; George v. Wood, 9 Allen (Mass.) 80, 85 Am. Dec. 741; Gray v. Loud & Sons Lumber Co., 128 Mich. 427, 54 L. R. A. 731, 87 N. W. 376;
Ligation. Consequently its application is excluded by a contract of assumption on the part of the first transferee, since this relieves the grantor from any such obligation.44"45 And even though there is no contract of assumption, the doctrine is not applicable if the first transfer is subject to the mortgage,46 in the sense that the land transferred is thereby rendered the primary fund for the payment of the mortgage debt.47 Furthermore, the land transferred to different persons may by agreement or express provision be transferred subject to particular portions of the mortgage debt.48 Occasionally even an express "subject" clause in the conveyance has been construed as imposing on the part conveyed only a proportionate part of the mortgage debt.49
Crosby v. Farmers' Bank of Andrew County, 107 Mo. 436, 17 S. W. 1004; Brown v. Simons, 44 N. H. 475; Thompson v. Bird, 57 N. J. Eq. 175, 40 Atl. 857; Clowes v. Dickenson, 5 Johns. (N. Y.) 235; Sternberger v. Hanna, 42 Ohio St. 3C5; Cowden's Estate, 1 Pa. St. 267; Miller v. Rogers, 49 Tex. 398; Lyman v. Lyman, 32 Vt. 79, 76 Am. Dec. 151.
42. Bates v. Ruddick, 2 Iowa, 423; Barney v. Myers, 28 Iowa, 472; Dillivan v. German Sav. Bank (Iowa), 124 N. W. 350; Dickey v. Thompson, 8 B. Mon. (Ky.) 312; Griffin v. Gingell, 25 Ky. L. Rep. 2031, 79 S. W. 284.
The transferee of a part of the mortgaged land is, by the record of the prior transfer of another part by the same grantor, charged with notice of such transfer and of any consequent primary liability upon the part then retained.43 He knows that he purchases a part subject to the possibility that there may have been a prior sale of another part, and it is his duty, in the exercise of due diligence, to examine the records to ascertain whether there has been such a prior sale. If he makes such examination and fails to find such a prior transfer of record, he has a right to assume, if he has no information to the contrary, that no such transfer occurred. Consequently the transferee of part of the mortgaged land may, by failure to record his transfer, lose the right to have the part subsequently transferred to another first applied upon the mortgage, if the result is that the subsequent transferee takes without notice of the previous transfer, and of the consequent increased burden upon the land transferred to him.
The doctrine above discussed, imposing a primary liability upon the land retained by the grantor, and upon that last transferred by him, being based upon an obligation resting on the grantor, as against his transferee, to pay off the mortgage and so relieve the land transferred, can apply only when there is such an ob43. Interstate Land & Investment Co. v. Logan, 196 Ala. 196, 72 So. 36; Hunt v. Mansfield, 31 Conn. 488; Chase v. Woodbury, 6 Cush. (Mass.) 143; Gray v. Loud & Sons Lumber Co., 128
Mich. 427, 54 L. R. A. 731, 87 N. W. 376; Brown v. Simons, 44 N. H. 475; Hull v. Howell, 36 N. J. Eq. 25; Chapman v. West, 17 N. Y. 125; Stanley v. Stocks, 16 N. C. 314.
In one state it has been decided that if there is no pecuniary consideration for the conveyance of part of the land, and no covenant therein protecting the transferee, he will take it subject to a primary liability for a proportional part of the mortgage debt.50 Such a view appears questionable, as applied to cases in which the transferor is personally liable for the debt. The presumption is, it is conceived, in such a case of transfer by way of gift, that the transferor is to pay his own debt51 and consequently the land retained would be primarily liable.52 Even in the state referred to, the fact that the consideration is nominal merely is immaterial in this regard, if the conveyance contains a covenant of warranty applicable to the mortgage, this serving to indicate an intention that the land conveyed shall be free from liability.53
44-45. Drury v. Holden, 121 111. 130, 13 N. E. 547; Welch v. Beers, 8 Allen (Mass.) 151; Jager v. Vollinger, 174 Mass. 521, 55 N. E. 458; Mowry v. Mowry, 137 Mich. 277, 100 N. W. 388; Chancellor of New Jersey v. Towell, 80 N. J. Eq. 223, 39 L. R. A. (N. S.) 359, Ann. Cas. 1914 A, 710, 82 Atl. 861; Thompson v. Bird, 57 N. J. Eq. 175, 40 Atl. 857; Bowne v. Lynde, 91 N. Y. 92.
46. Briscoe v. Power, 47 111. 447; Monarch Coal & Mining Co. v. Hand, 197 111. 288, 64 N. E. 381; Burger v. Grief, 55 Md. 518; Brown v. South Boston Sav. Bank, 148 Mass. 300, 19 N. E. 382; En-gle v. Haines, 5 N. J. Eq. 186; Johnson v. Zink, 51 N. Y. 333; Carpenter v. Koons, 20 Pa. St. 222;
New England Loan & Trust Co. v. Stephens, 16 Utah, 385, 52 Pac. 624; Sweetzer v. Jones, 35 Vt. 317, 82 Am. Dec. 639.
47. Ante, Sec. 622.
48. Moore v. Shurtleff, 128 111. 370, 21 N. E. 775; Mickle v. Maxfield, 42 Mich. 304, 3 N. W. 961; Zabriskie v. Salter, 80 N. Y. 555; Erown v. South Boston Sav. Bank, 148 Mass. 300, 19 N. E. 382.
49. Stephens v. Clay, 17 Colo. 489, 31 Am. St. Rep. 328, 30 Pac. 43; Slater v. Breese, 36 Mich. 7; Hall v. Morgan, 79 Mo. 47; Hoy v. Bramhall, 19 N. J. Eq. 563, 97 Am. Dec. 687; Burger v. Greif, 55 Md. 518 (semble).
50. Jackson v. Condict, 57 N. J. Eq. 522, 41 Atl. 374; Mills v. Kelley, 62 N. J. Eq. 213, 50 Atl.
It has been quite frequently stated, either expressly or by implication, that the doctrine by which the part retained by the mortgagor, or last transferred by him, is made primarily liable, applies only in favor of one who is protected by a warranty deed, or at least a deed containing some covenant for title applicable to the mortgage.54 On the other hand the doctrine is more usually stated without any such qualification.55