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 .
The discharge of the obligation secured, either by payment or otherwise, has necessarily the effect of extinguishing the mortgage lien. The principal having ceased to exist, the accessory must also cease to exist. This is so even in jurisdictions in which the legal title to the land is in the mortgagee,23 but there it may happen that though
19. Osborn v. Carr, 12 Conn. 208; Averill Guthrie, 8 Dana
(Ky.) 84; Loring v. Cooke, 3 Pick. Mass.) 48; Grant v. Bissett, 1 Caines Cas. (N. Y.) 112; Brazee v. Lancaster Bank, 14 Ohio, 321; Anderson v. Neff, 11 Serg. & R.
(Pa.) 223; Siter v. McClanahan, 2 Grat. (Va.) 280; 4 Kent's Comm. 178; 1 White & T. Lead Cas. Eq. 853, Amer, notes.
20. 2 Robbins, Mortgages, 855; Williams, Real Prop. 441; 4 Kent's
Comm. 179, note 1(d) B.
21. Conveyancing and Law of Property Act 1881, Sec. 17.
22. See 2 Jones, Mortgages, Sec. 1083.
23. Ryan v. Dunlap, 17 111. 40, 63 Am. Dec. 334; Redmond v. Packenham, 66 111. 434; Sherman v. Sherman, 3 Ind. 337; Armitage v. Wickliffe, 12 B. Mon. (Ky.) 488; Hussey v. Fisher, 94 Me. 301, 47 Atl. 525; Marriott v. Handy, 8 Gill (Md.) 31; Carter v. Van Bokkelen, the lien of the mortgage is extinguished by the discharge of the obligation, the bare legal title remains in the mortgagee, to divest him of which a reconveyance by him is necessary.24
The possible modes of discharge of an obligation secured by mortgage are the same as those of an obligation not so secured, and what these are is a matter for consideration in connection with the law of contracts rather than of mortgages. Consequently but a brief reference thereto will here be made.
The obligation secured may be discharged by a release executed by the creditor,25 and a release or discharge in terms of the mortgage will be presumed to be intended to operate' on the debt, so as to discharge the personal liability thereon, in the absence of evidence of a contrary intention.26
As it is possible to execute a mortgage to secure an obligation not involving any personal liability,27 so it is possible for the mortgage creditor to release the preexisting personal liability of the mortgagor, without discharging the obligation itself or the mortgage security therefor, the obligation remaining thereafter against the land only.28 And a fortiori is the
73 Md. 175, 20 Atl. 781; Grimes v. Kimball, 3 Allen 518; Wilbur v. Jones, 80 N. J. 520, 86 Atl. 796; Blake v. Broughton, 107 N. C. 220, 12 S. E. 127; Perkins v. Dibble, 10 Ohio 433; Anderson v. Neff, 11 Serg. & R. (Pa.) 208.
24. Post, this subsection, note 76.
25. An undertaking by the mortgage creditor to save the purchaser harmless from all cost and damage by the mortgage has been regarded as in effect a release, it being similar in this respect to a covenant not to sue. Proctor v. Thrall, 22 Vt. 262;
Jackson v. Stackhouse, 1 Cow. (N. Y.) 122, 13 Am. Dec. 514. See Wald's Pollock on Contracts, (Williston's Ed.) 81?. As to a "parol release," so called, see Achla v. Achla, 6 Pa. 228.
26. Burke v. Snell, 42 Ark. 57; Security Loan & Trust Co. v. Mat-tern, 131 Cal. 326, 63 Pac. 482; Chappell v. Allen, 38 Mo. 213; Sells v. Tootle, 160 Mo. 593, 61 S. W. 579; Robinson v. Sampson, 121 N. C. 99, 28 S. E. 189; Fleming v. Parry, 24 Pa. St. 47; Seiple v. Seiple, 133 Pa. St. 460, 19 Atl. 406.
27. Ante, Sec. 607 (b).
28. See Donnelly T. Simonmortgage not extinguished by the release of one of two or more persons liable for the debt, as when the debt has been assumed by a transferee of the mortgaged land and the creditor thereafter releases the transferor from liability.29
The physical redelivery to the mortgage debtor of the bond or note secured will operate to discharge the debt, if made with this intention,30 though it may be shown that the redelivery was made for another purpose.31
It has been held that the creditor may forgive a part of the debt, and so extinguish the mortgage to that extent, by the delivery to the debtor of a receipt for part of the sum secured32 or by indorsements of part payments on the note evidencing the debt.33 And a forgiveness of the debt secured has been inferred from directions by the creditor to his executor to cancel the bond and mortgage.34
A bond and mortgage given to secure the payment of an indebtedness under a contract of sale are discharged by a recission of such contract, since the indebtedness under the contract is thereafter nonexistent.35
The obligation secured by a mortgage is almost invariably the payment of money, but it may be the ton, 13 Minn. 301; First Nat. Bank v. Gallagher, 119 Minn. 463, 138 N. W. 681; Coburn v. Step-Lens, 137 Ind. 683, 45 Am. St. Rep. 218, 36 N. E. 132.
29. Tripp v. Vincent, 3 Barb. Ch. (N. Y.) 613; Bentley v. Van-derheyden, 35 N. Y. 677.
30. Thomas v. Fuller, 68 Hun (N. Y.) 361, 22 N. Y. Supp. 862; Sherman v. Sherman, 3 Ind. 337; Richards v. Syms, 2 Eq. Cas. Abr. 617.
31. Bourland v. Wittich, 38 Ark. 167; Dixfield v. Newton, 41
Me. 221; Killops v. Stephens, 66 Wis. 571, 29 N. W. 390.
32. Carpenter v. Soule, 88 N. Y. 251.
33. Green v. Langdon, 28 Mich. 221.
34. Weeks v. Weeks, 16 Abb N. Cas. 143. But that an oral forgiveness of the debt is a nullity, see Tulane v. Clifton, 47 N. J. Eq. 351, 20 Atl. 1086, 48 N. J. Eq. 310, 24 Atl. 131.
35. Eveland v. Wheeler, 37 N. Y. 244; Wanzer v. Cary, 76 N. Y. 526.
Doing of some other act, and in such case the doing of the act will obviously discharge the obligation. So in the case of a mortgage made to secure a contract to eare for and support the mortgagee during the balance of his life, the contract is discharged, and also the mortgage, if the care and support are furnished until the mortgagee's death.36 So in the case of a mortgage given to another to indemnify the latter against a possible liability, the mortgage is discharged when there is no further possibility of liability.37