appear hereafter, the mortgage debt, as well as the mortgage, should be expressly assigned, or the evidence thereof delivered, and the assignment should be recorded.

On the common-law theory of the character of a mortgage, which regards the legal title as vested in the mortgagee, the only mode of transferring such title is by a formal conveyance similar to that required in the case of other transfers of estates in land, and, accordingly, such a conveyance is in some states necessary for the transfer of all the rights of the mortgagee.246 Provided the mortgagee's interest in the land is transferred, the exact form of the conveyance is imma. terial, and, accordingly, either a warranty or quitclaim deed, or a deed of release, is sufficient to transfer the legal title, although the mortgage is not specifically referred to.247

§ 532. Transfer of mortgage debt.

In addition to the modes of transfer involving an express conveyance of the mortgagee's interest in the land, or an assignment of the mortgage eo nomine, there is a mode of assignment, of even greater importance, growing out of the equitable principle that the debt secured is the principal thing, and the mortgage securing it merely an incident. Upon this principle it is recognized, in some states in courts of equity only, but in others in courts of law as well, that an assignment of the debt, however evidenced, effects an assignment of the mortgage, conferring upon the assignee of the

246 Douglass v. Durin, 51 Me. 121; Smith v. Kelley, 27 Me. 237, 46 Am. Dec. 595; Warden v. Adams, 15 Mass. 233, Kirchwey's Cas. 626; Adams v. Parker, 12 Gray (Mass.) 53; Torrey v. Deavitt, 53 Vt. 331; Sanders v. Cassady, 86 Ala. 246; Barrett v. Hinckley, 124 Ill. 32, 57 Am. St. Rep. 331, Kirchwey's Cas. 634; Williams v. Teachey, 85 N. C. 402; Givan v. Doe, 7 Blackf. (Ind.) 210.

247 Welsh v. Phillips, 54 Ala. 309; Hunt v. Hunt, 14 Pick. (Mass.) 374, 25 Am. Dec. 400; Douglass v. Durin, 51 Me. 121; Welch v. Priest, 8 Allen (Mass.) 165; Ruggles v. Barton. 13 Gray (Mass.) 506; Collamer v. Langdon, 29 Vt. 32; Cole v. Edgerly, 48 Me. 108.

debt the rights and remedies of the original mortgagee, except in so far as these are based upon a legal title in the mortgagee.248 And a merely oral assignment of the debt is sufficient to transfer the mortgage under this rule.249 Such a transfer of the debt cannot, however, in those states in which a legal title to the land is regarded as existent in the mortgage, have the effect of transferring such title,250 but it will be regarded as held in trust for the transferee of the debt.251 § 533. Transfer of part of debt.

The principle that an assignment of the debt involves an assignment of the mortgage security applies in the case of an assignment of a part only of the debt, which is usually effected by a transfer of one of several notes evidencing the debt, and in such cases the assignee is entitled to share in

248 Carpenter v. Longan, 16 Wall. (U. S.) 271; Green v. Hart, 1 Johns. (N. Y.) 580, Kirchwey's Cas. 622; Lawrence v. Knap, 1 Root (Conn.) 248, 1 Am. Dec. 42, Kirchwey's Cas. 621; Herring v. Woodhull, 29 Ill. 92, 81 Am. Dec. 296; Stewart v. Preston, 1 Fla. 11, 44 Am. Dec. 621; Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72; Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373, 3 Am. St. Rep. 655; Morris v. Bacon, 123 Mass. 58, 25 Am. Rep. 17; Crosby v. Roub, 16 Wis. 616, 84 Am. Dec. 720; Mitchell v. Ladew, 36 Mo. 526, 88 Am. Dec. 156; Bank of Indiana v. Anderson, 14 Iowa, 544, 83 Am. Dec. 390; Runyan v. Mersereau, 11 Johns. (N. Y.) 534, 6 Am. Dec. 393; 3 Pomeroy, Eq. Jur. § 1210.

249 Pease v. Warren, 29 Mich. 9, 18 Am. Rep. 58; Rigney v. Lovejoy, 13 N. H. 247; Pratt v. Bennington Bank, 10 Vt. 293, 33 Am. Dec. 201; Fred Miller Brewing Co. v. Manasse, 99 Wis. 99, 67 Am. St. Rep. 854; Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72; Runyan v. Mersereau, 11 Johns. (N. Y.) 534, 6 Am. Dec. 393.

250 Cottrell v. Adams, 2 Biss. 351, Fed. Cas. No. 3,272; Smith v. Kelley, 27 Me. 237, 46 Am. Dec. 595; Bailey v. Winn, 101 Mo. 649; Young v. Miller, 6 Gray (Mass.) 152; Barrett v. Hinckley, 124 Ill. 32, 7 Am. St. Rep. 331, Kirchwey's Cas. 634.

251 Jordan v. Cheney, 74 Me. 359; Barrett v. Hinckley, 124 Ill. 32. 7 Am. St. Rep. 331, Kirchwey's Cas. 634; Crane v. March, 4 Pick. (Mass.) 131, 16 Am. Dec. 329; Morris v. Bacon, 123 Mass. 58, 25 Am. Rep. 17.

the benefit of the mortgage security.2 252 When the various notes secured by the mortgage are transferred to different persons, a question arises as to the respective priorities of those persons in case the mortgaged land is not sufficient to pay all the notes in full. In some states the rule has been adopted that, if the notes in the hands of different persons mature at different times, as is usually the case, they are entitled to priority, as regards the benefit of the mortgage, in the order of their maturity.253 In other states, the assignees of the different notes are entitled to share in the proceeds of the mortgaged land in proportion to the amounts of their respective notes, without reference to the time of their maturity.254 The rights of the assignees of the notes in this respect may also be controlled by an express stipulation in

252 Page v. Pierce, 26 N. H. 317, Kirchwey's Cas. 630; Sargent v. Howe, 21 Ill. 148; Anderson v. Baumgartner, 27 Mo. 80; Studebaker Bros. Mfg. Co. v. McCargur, 20 Neb. 500; Patrick's Appeal, 105 Pa. St. 356; Miller v. Rutland & W. R. Co., 40 Vt. 399, 94 Am. Dec. 414. 253 Grapengether v. Fejervary, 9 Iowa, 163, 74 Am. Dec. 336; Isett v. Lucas, 17 Iowa, 503, 85 Am. Dec. 572; Wood v. Trask, 7 Wis. 566, 76 Am. Dec. 230; Mitchell v. Ladew, 36 Mo. 526, 88 Am. Dec. 156; State Bank v. Tweedy, 8 Blackf. (Ind.) 447, 46 Am. Dec. 486; Minor v. Hill, 58 Ind. 176, 26 Am. Rep. 71; Winters v. Franklin Bank of Cincinnati, 33 Ohio St. 250; Funk v. McReynold's Adm'rs, 33 Ill. 481; Wilson v. Hayward, 6 Fla. 171; Anderson v. Sharp, 44 Ohio St. 260.

But even where this rule is recognized, if the mortgage provides that, on default in payment of one of the notes, all shall become due, upon such default all are entitled to share equally. Bushfield v. Meyer, 10 Ohio St. 334; Pierce v. Shaw, 51 Wis. 316; Whitehead v. Morrill, 108 N. C. 65. Contra, Leavitt v. Reynolds, 79 Iowa, 348; Horn v. Bennett. 135 Ind. 158, 24 L. R. A. 800.

254 Donley v. Hays, 17 Serg. & R. (Pa.) 400; Parker v. Mercer, 6 How. (Miss.) 320, 38 Am. Dec. 438; Penzel v. Brookmire, 51 Ark. 105. 14 Am. St. Rep. 23; Jennings v. Moore, 83 Mich. 231, 21 Am. St. Rep. 601; Perry's Appeal, 22 Pa. St. 43, 60 Am. Dec. 63; Dixon v. Clayville, 44 Md. 573; Lovell v. Cragin, 136 U. S. 147; Eastman v. Foster, 8 Metc. (Mass.) 19.

the mortgage, or by an agreement made at the time of assigning a note, as to the order of priority.2

255

Occasionally, though not usually, the view has been taken that a mortgagee who assigns one or more of the notes, retaining the balance, cannot claim to share in the benefit of the mortgage security as against his assignee, since he is presumed to have been paid by the latter the value of the notes assigned,256 and it seems to be agreed that a contract to this effect is to be presumed from the fact that the mortgage is assigned with the notes.257 Likewise, if the mortgagee is a surety for the payment of the note, he cannot claim a part of the benefit of the mortgage as against his assignee.258

§ 534. Transfer of mortgage without debt.

Even in the states which adhere to the common-law view of a mortgage, the assignment of the mortgage merely, or of the mortgagee's interest in the land, without an assignment of the debt, or of the note or bond evidencing the debt, transfers, at most, the bare legal title, which the assignee will hold in trust for the owner of the debt.2 259 In the states which

255 Walker v. Dement, 42 Ill. 272; Granger v. Crouch, 86 N. Y. 494; Morgan v. Kline, 77 Iowa, 681; Norton v. Palmer, 142 Mass. 433; Ellis v. Lamme, 42 Mo. 153; Howard v. Schmidt, 29 La. Ann. 129; Chew v. Buchanan, 30 Md. 367; McLean's Appeal, 103 Pa. St. 255. 256 Parkhurst v. Watertown Steam Engine Co., 107 Ind. 595; Knight v. Ray, 75 Ala. 383. Contra, Dixon v. Clayville 44 Md. 573; Donley v. Hays, 17 Serg. & R. (Pa) 400; Patrick's Appeal, 105 Pa. St. 356; Keyes v. Wood, 21 Vt. 331.

257 Bryant v. Damon, 6 Gray (Mass.) 564; Foley v. Rose, 123 Mass. 557; Langdon v. Keith, 9 Vt. 300; Solberg v. Wright, 33 Minn. 224; Miller v. Washington Sav. Bank, 5 Wash. 200.

258 Whitehead v. Morrill, 108 N. C. 65; Fourth Nat. Bank's Appeal, 123 Pa. St. 484, 10 Am. St. Rep. 538.

259 Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Farrell v. Lewis, 56 Conn. 280; Sanger v. Bancroft, 12 Gray (Mass.) 365; Williams v. Teachey. 85 N. C. 402; Collamer v. Johnson, 29 Vt. 32; Barrett v. Hinckley, 124 Ill. 32, 7 Am. St. Rep. 331, Kirchwey's Cas. 634.

A transfer by the mortgagee of his interest in the land, without

have adopted the lien theory, the assignment of the mortgage, or conveyance of the land by the mortgagee, without reference to the debt, is regarded as a mere nullity.200

§ 535. Freedom of transfer from equities.

If the note or other obligation secured by the mortgage is not negotiable, the assignee thereof, like any other assignee of a non-negotiable chose in action, takes it subject to all equities and defenses which existed as between the original parties, such as illegality, failure of consideration, part payment, and the like.201 In some cases, however, one who makes and delivers a mortgage in favor of another person, which is valid on its face, is estopped, as against an assignee of such mortgage, to assert the invalidity of the mortgage.262

the debt, is, even in some of these states, regarded as an absolute nullity. Devlin v. Collier, 53 N. J. Law, 422; Delano v. Bennett, 90 III. 533; Lunt v. Lunt, 71 Me. 377; Ellison v. Daniels, 11 N. H. 275. But sometimes, apparently, a conveyance by the mortgagee of the land is construed as intended to transfer the mortgage debt also. Woods v. Woods, 66 Me. 206; Connor v. Whitmore, 52 Me. 186; Ruggles v. Barton, 13 Gray (Mass.) 506; Dearnaley v. Chase, 136 Mass. 290.

260 Jackson v. Bronson, 19 Johns. (N. Y.) 325 Kirchwey's Cas. 629; Peters v. Jamestown Bridge Co., 5 Cal. 334, 63 Am. Dec. 134; Jordan v. Sayre, 29 Fla. 100; Johnson v. Cornett, 29 Ind. 59; Merritt v. Bartholick, 36 N. Y. 44, Finch's Cas. 1113; Swan v. Yaple, 35 Iowa, 248, Greve v. Coffin, 14 Minn. 345 (Gil. 263), 100 Am. Dec. 229; McCammant v. Roberts, 87 Tex. 241; Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72. 261 Matthews v. Wallwyn, 4 Ves. 118, Kirchwey's Cas. 43; Vredenburgh v. Burnet, 31 N. J. Eq. 229; James v. Morey, 2 Cow. (N. Y.) 246, 14 Am. Dec. 475; Ingraham v. Disborough, 47 N. Y. 421; Crane v. Turner, 67 N. Y. 437; Moffatt v. Hardin, 22 S. C.. Olds v. Cummings, 31 I 188. Kirchwey's Cas. 662; Nichols v. Lee, 10 Mich. 526, 82 Am. Dec. 57; Mott v. Clark, 9 Pa. St. 399, 49 Am. Dec. 566; Horstman v. Gerker, 49 Pa. St. 282, 88 Am. Dec. 501; Fish v. French, 15 Gray (Mass.) 520; Moffett v. Parker, 71 Minn. 139, 70 Am. St. Rep. 319.

262 Webb v. Commissioners of Herne Bay. L. R. 5 Q. B. 642, Kirchwey's Cas. 649; Com. v. City of Pittsburgh, 34 Pa. St. 496, 520; Mc