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 .
59. Pearson v. Bailey, 177 Mass. 318, 58 N. E. 1028. And see Burger v. Greif, 55 Md. 518, apparently to the same effect.
60. Savings Bank v. Creswell, 100 U. S. 630, 25 L. Ed. 713; Fas-sett v. Mulock, 5 Colo. 466; Payne v. Avery, 21 Mich. 524; Dawes v. Cammus, 32 N. J. Eq. 456; Stuy-vesant v. Hall, 2 Barb. Ch. (N. Y.) 151; Cowden's Estate, 1 Pa.
267; Milligan's Appeal, 104 Pa. 503; Conrad v. Harrison, 3 Leigb. (Va.) 532.
61. Howser v. Cruikshank, 122 Ala. 256, 82 Am. St. Rep. 76, 25 So. 206; George v. Kent, 7 Allen (Mass.) 16; Case Threshing Mach. Co. v. Mitchell, 74 Mich. 679. 42 N. W. 151; State v. Titus, 17 Wis 241.
3 R. P.- 16 the first mortgage, unless he entered into a covenant in this regard, and consequently the part of the land not subjected to the second mortgage should not, it would seem, either in his hands, or in the hands of a subsequent purchaser or mortgagee, be subject to a primary liability for the first mortgage debt in total or partial exoneration of the part covered by the second mortgage. The fact that the second mortgage of part is or is not in terms subject to the first mortgage does not appear to have any particular weight in this connection, as it does in the case of an absolute conveyance which is so subject.62
The doctrine of liability in the inverse order of alienation has been applied in favor of one claiming a part of the land under a contract of purchase which is specifically enforcible, he being the owner in the view of a court of equity.63 But a purchaser of part, although he has acquired the legal title, has been held not to be entitled to the benefit of the doctrine, unless or until he pays all the agreed purchase price, since the part unpaid is properly money belonging to the grantor, remaining in the purchaser's hands, which he should apply upon the mortgage debt for the benefit of the subsequent grantee.64
An execution sale of mortgaged land is at least presumed to be subject to the mortgage, in the sense that the execution purchaser cannot assert a right of exoneration as against the execution debtor.65 And consequently a purchaser of part of the mortgaged land at such sale cannot assert a primary liability upon the part retained.66
62. Ante, Sec. 622, note 48. See Savings Investment & Trust Co. of East Orange v. United Realty & Mortgage Co., 84 N. J. Eq. 472, Ann. Cas. 1916 D, 1134, 94 Atl. 588.
63. Sterberger v. Hanna, 42 Ohio St. 305; Libby v. Tufts, 121
N. Y. 172, 24 N. E. 12; Watson v. Neal, 38 S. C. 90, 16 S. E. 833.
64. Beddow v. Dewitt, 43 Pa. St. 326; Watson v. Neal, 38 S. C. 90, 16 S. E. 833.
65. Ante, Sec. 622, note 33.
66. Sternberger v. Sussman, 69 N. J, Eq. 197, 60 Atl. 195, 85 N. J.
The mortgagee, or his assignee, if he has notice of the transfer of a part or parts of the mortgaged land, cannot release any part, to the injury of the owners of other parts, and, by a release of a part which is cither concurrently or primarily liable, he to that extent extinguishes the lien. So, when the several parts in the hands of different grantees are liable in proportion to their value, as having been conveyed by concurrent and similar conveyances, a release of one part may extinguish the mortgage lien in favor of the other parts, to the extent to which such part would be liable, measured by its proportional value;67 and so when a part primarily liable, as having been last transferred, or otherwise, is released, the lien on the part secondarily liable is ordinarily extinguished to the extent of the value of the land so released.68 But this preclusion of the holder of the mortgage to disturb the equities of the persons interested by releasing a part from the mortgage applies only when he has actual notice of these equities. He is not affected with constructive notice of any transfer which may be made, by reason of the record of such transfer, there being no obligation on him to search the records in order to discover conveyances recorded subsequently to his own.69 ConEq. 593, 98 Atl. 1087; Erlinger v. Boul, 7 111. App. 40; Carpenter v. Koons, 20 Pa. 222. See Delaware County Trust Co. v. Lukens, 38 Pa. Super. Ct. 509. Compare Sernmes v. Moses, 21 Ga. 439.
67. Birnie v. Main, 29 Ark. 591; Brooks v. Benham, 70 Conn. 92, 66 Am. St. Rep. 87, 38 Atl. 908, 39 Atl. 1112; Taylor v. Short's Adm'r, 27 Iowa, 361, 1 Am. Rep. 280; Johnson v. Rice, 8 Me. 157; Parkman v. Welch, 19 Pick. (Mass.) 231; Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 425; Deuster v McCamus, 14 Wis. 307.
68. Interstate Land & Investment Co. v. Logan, 196 Ala. 196, 72 So. 36; Ellis v. Fairbanks, 38 Fla. 257, 21 So. 107; Boone v. Clark, 129 111. 466, 5 L. R. A. 276, 21 N. E. 850; George v. Wood, 9 Allen (Mass.) 80, 85 Am. Dec. 741; Brown v. Simons, 44 X. H. 475; Gaskill v. Sine. 13 N. .1. Eq. 400, 78 Am. Dec. 105; Howard Ins. Co. v. Halsey, 8 N. Y. 271, 59 Am. Dec. 478; Paxton v. Harrier, 11 Pa. St. 312; Burson v. Black-ley, 67 Tex. 5, 2 S. W. 668.
69. Post, Sec. 644, notes 2, 3.
Sequently, any transferee of a part desiring to protect his equities in this regard should notify the holder of the mortgage claim of the transfer to him.