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 .
144. In Mead v. Peabody, 183 111. 126, 55 N. E. 719, it was decided without discussion that the part first transferred should be first applied on the debt, when the transfer was for a nominal consideration except that the transferee's husband assumed the debt.
51. Ante, Sec. 622, note 22.
52. Watson v. Neal, 38 S. C. 90, 16 S. E. 833; Cumming v. Cumming, 3 Ga. 460.
53. Harrison v. Guerin, 27 N. J. Eq. 219. See Howser v. Cruik-shank, 122 Ala. 256, 82 Am. St. Rep. 76, 25 So. 206.
54. Aderholt v. Henry, 87 Ala. 415, 6 L. R. A. 451, 6 So. 625; Stephens v. Clay, 17 Colo. 489, 31 Am. St. Rep. 328, 30 Pac. 43; Er-linger v. Boul, 7 111. App. 40; Jennings v. Moon, 135 Ind. 168, 34
N. E. 996 isemble); Bradley v. George, 2 Allen (Mass.) 392; Aiken v. Gale, 37 N. H. 501; Carpenter v. Koons, 20 Pa. St. 222; Stein-meyer v. Steinmeyer, 55 S. C. 9, 33 S. E. 15; Solicitors' Loan & Trust Co. v. Washington & I. R. Co., 11 Wash. 684, 40 Pac. 344 (semble). See In Re Jones (1893) 2 Ch. 461. It is so stated in 3 Pomeroy Eq. Jur. Sec. 1225; 2 White & T. Lead Cas. Eq. (4th Am. Ed.) 296, 303. Mr. Pomeroy's statement to this effect is disapproved in Biswell v. Gladney, Tex.
Civ. App. , 182 S. W. 1168.
55. See, e. g., Savings Bank v. Creswell, 100 U. S. 630, 25 L. Ed. 713; Sanford v. Hill, 46 Conn. 42; Looney v. Quill, 3 Mackey (D. C.) 51; Iglehart v. Crane, 42 111. 261; Wallace v. Stevens, 64 Me. 225;
Feree of that part cannot assert that then is a primary liability upon the part first transferred.59
The lack of harmony in these statements appears to be due to a failure to discriminate between the different classes of circumstances under which the doctrine may be sought to be applied.
In case the transfer of part of the laud is by the mortgagor himself, who is personally liable for the debt, the part retained by him is primarily liable whenever, as between him and the part transferred, he is himself primarily liable. If by reason of an assumption or subject clause, or otherwise, the part transferred is primarily liable as against him, it is so liable as against the part retained by him. The presence or absence of a covenant of title is immaterial except as this may serve to show that the land in the hands of the transferee is or is not primarily liable for the debt.56 In case the transfer of part of the land is not by the mortgagor, but by his transferee, and the latter is personally liable as having assumed the mortgage debt, the question whether the part retained by him upon a transfer of part is primarily liable is determined by the same considerations as control when the transfer of part is by the original mortgagor. It is so primarily liable if he is primarily liable as regards the part transferred by him, and not otherwise.
Hopper v. Smyser, 90 Md. 363, 45 Atl. 206; Cooper v. Bigley, 13 Mich. 474; Gray v. H. M. Loud & Sons Lumber Co., 128 Mich. 427, 54 L. R. A. 731, 87 N. W. 376; Crosby v. Farmers' Bank of Andrew County, 107 Mo. 436, 17 S. W. 1004; Mahagan v. Mead, 63 N. H. 570; Welling v. Ryerson, 94 N. Y. 98; Clowes v. Dickerson, 5 Johns. Ch. (N. Y.) 235; Stern-berger v. Hanna, 42 Ohio St. 305; Cowden's Estate, 1 Pa. 207; Watson v. Neal, 38 S. C. 90, 16 S. E. 833; Miller v. Rogers, 49 Tex. 398; Hawkins v. Potter, 62 Tex.
Civ. App. 126, 130 S. W. 643; Deavitt v. Judevine, 60 Vt. 695, 17 Atl. 410; Miller v. Holland, 84 Va. 652, 5 S. E. 701; State v. Titus, 17 Wis. 241.
56. In the following cases the existence of a covenant for title was referred to as indicating an intention that the land conveyed should be exonerated. Sanford v. Hill, 46 Conn. 42; Thompson v. Bird, 57 N. J. Eq. 175, 40 Atl. 857; Case Threshing Mach. Co. v. Mitchell, 74 Mich. 679, 42 N. W. 151; In re Jones (1893) 2 Ch. 461.
In case the transfer of part is by a transferee of the land who did not assume any personal liability for the mortgage debt, the part retained by him is not subject to a primary liability unless, in making the transfer of part, he undertakes to relieve that part from liability for the debt. In this case the presence or absence of a covenant of title is a matter of controlling importance. In the absence of any such covenant, there is no primary liability upon the part retained by him, because there is no primary liability upon him personally. The fact that the transfer to him is in terms subject to the mortgage is immaterial in this regard, since that imposes no personal liability. On the other hand, if there is a covenant by him for title, which is applicable to the mortgage, the part retained by him is primarily liable, because he himself is under an obligation to protect his transferee as regards the mortgage.57
If, by reason of the assumption of the mortgage debt by a transferee of part of the mortgaged property, or by reason of the fact that the transfer of such part is subject to the mortgage, that part has once become primarily liable, it must necessarily so remain, into whosesoever hands it may subsequently pass.58
It has been decided that, though a part transferred is primarily liable as against the part retained, yet if this latter part is subsequently transferred to another in terms subject to the mortgage, the trans57. In Hopkins v. Wolley, 81 N. Y. 77, it was decided without discussion, that where A the owner of the whole land subject, transferred the land to B, and B subsequently transferred a part of the land back to A, the fact that A was personally liable for the debt did not affect his right to have the part retained by B. first applied on the debt. But here the original transfer from A. to B. was in terms subject to the lien, which fact is sufficient to explain the decision.
58. Skinner v. Harker, 23 Colo. 333, 48 Pac. 648; Iowa Loan & Trust Co. v. Mowery, 67 Iowa, 113, 24 N. W. 747; Jumel v. Jumel, 7 Paige (N. Y.) 591; Russell v. Pis-tor, 7 N. Y. 171, 57 Am. Dec. 509.
The doctrine subjecting the parts of mortgaged land in the inverse order of alienation has been applied in the case of subsequent successive mortgages of parts as well as in the case of absolute transfers.60 And it has also been applied as between a purchaser of part and a mortgage of another part.61 A distinction may however be suggested in this connection. If one who is personally liable for the mortgage debt, as being the original mortgagor or as having assumed the debt, subsequently mortgages a part of the mortgaged land for another debt, the part of the land not subjected to the second mortgage should ordinarily be first applied in payment of the first mortgage. It being the debt of the maker of the second mortgage, it should be paid primarily from that part of the land in which he is alone interested, and the right of the second mortgagee to insist on the satisfaction of that debt from such part of the land as is not covered by his mortgage would not be affected by the fact that such other part is subsequently transferred or mortgaged to another. If, however, the person who makes the second mortgage of part is not personally liable for the debt secured by the first mortgage, he is under no obligation to the second mortgagee as regards the payment of the first mortgage debt, or the removal of the incumbrance of