Sec. 567. Agreement to assume mortgage-Acceptance-Assignment-Cancellation. A mortgagee is not compelled to take a personal judgment against nor accept a grantee who assumes the mortgage; he can stand on the mortgage contract. McKinley-Lanning Loan & Trust Co. v. Bassett, 5 Kan. App. 469 (46 Pac. Rep. 999). While recognizing the right of the holder of a mortgage debt to avail himself, in equity, of any promise by the mortgagor's vendee to pay the mortgage debt, it is held in North Carolina that a written agreement between the mortgagee, his mortgagor and the vendee of the latter that such vendee will assume to pay the mortgage debt is not assignable and an action of assumpsit cannot be maintained thereon by one to whom the mortgage debt has been transferred. Woodcock v. Bostic, 118 N. C. 822 (24 S. E. Rep. 362). Where a mortgagee for money loaned assumes and agrees to pay a balance due on a prior note and mortgage executed by the mortgagor to a third person, such promise is for the benefit of the mortagor and the third party cannot maintain an action thereon. Savings Bank of Southern Cal. v. Thornton, 112 Cal. 255 (44 Pac. Rep. 466). Where before

its acceptance by the mortgagee the obligation of a mortgagor's vendee to assume the mortgage is cancelled and released by a reconveyance of the land to the mortgagor, the mortgagee has no right of action against such vendee. Huffman v. Western Mortg. & Inv. Co., Tex. Civ. App. (36 S. W. Rep. 306). The court say: "While there is some diversity of opinion on this proposition, we think the great weight of authority is to the effect that where one assumes the debt of the original promisor, and there is a release by the promisor before there is an acceptance on the part of the creditor, or before suit is brought, then in that case the party assuming said indebtedness is released, and the creditor has no right of action against him. Where, however, there has been an acceptance upon the part of the creditor, then a release by the original promisor does not affect the creditor's right to recover from the party assuming the debt. Morrison v. Barry, 10 Tex. Civ. App. 22 (30 S. W. Rep. 376); Crowell v. Hospital, 27 N. J. Eq. 657; Keller v. Ashford, 133 U. S. 621 (10 Sup. Ct. Rep. 494); Bassett v. Hughes, 43 Wis. 319."

Sec. 568. Assumption of mortgage-Surety relation of mortgagor - Extensions- Depreciation of property. Where the owner of land executes a mortgage thereon to secure the payment of two notes given by him maturing at different times, subsequently conveys the land to another who assumes and agrees to pay such indebtedness, an extension of the time given by the payee to such assuming grantee on the note first maturing without the original maker's consent will operate to release him from personal liability upon such note, but does not defeat its preference over the second note as to the proceeds of the mortgaged property; nor does such extension on the first note operate as an extension of time on the second note which by its terms is not due, so as to release the maker, on account of the fact that the mortgage provides upon the default in the payment of one, the mortgage may be foreclosed as to both notes. Owings v. Mackenzie, 133 Mo. 323 (33 S. W. Rep. 802). It is held that the mortgagor is discharged from liability on account of the depreciation of the mortgage security below the debt during the period covered by the extension of the payment after maturity, where the payment of the debt was extended by the mortgagee and grantee of the mortgagor, without the consent of the mortgagor and when liability was not assumed by the grantee. The mortgagor has the right to complain only to the extent of the depreciation of the value of the mortgage security, which decreased during the period of time covered by the extension of the time of payment, and which deprived him of his right of subrogation, and so impaired his equitable rights as mortgagor as to discharge him from liability to the extent of the value of the land, which is shown to be less than the face of the mortgage, and to the extent of any deficiency judgment. Bunnell v. Carter, 14 Utah 100 (46 Pac. Rep. 755). Citing, Murray v. Marshall, 94 N. Y. 611; Clark v. Mackin, 95 N. Y. 346; Jones, Mortg. §§ 740-742; Metz v. Todd, 36 Mich. 473.

Sec. 569. Assignment of mortgages. A mortgagee may transfer his rights either by a legal or an equitable assignment. Densmore v. Savage, 110 Mich. 27 (67 N. W. Rep.

1103). The assignment of a debt secured by mortgage carries the mortgage with it, without any assignment of the mortgage itself, and where there are several notes secured by the same mortgage the assignment of one operates as an assignment of a proportionate interest in the mortgage. Cram v. Cottrell, 48 Neb. 646 (C7 N. W. Rep. 452; 58 Am. St. Rep. 714). An assignment of a promissory note, or other evidence of indebtedness, to secure which a deed to land has been given by the assignor, does not pass to the assignee the title to the land itself; but the assignee acquires, however, an equitable interest in the security, which when necessary to the collection of the debt, he may assert as against the debtor. Van Pelt v. Hurt, 97 Ga. 660 (25 S. E. Rep. 489). Particular assign ment of a mortgage by indorsement held sufficient under Ala. Code, 2694. Ward v. Ward, 108 Ala. 278 (19 So. Rep. 354). Where a mortgagee is estopped to deny his assignment of the mortgage the assignee thereof has sufficient title to maintain foreclosure proceedings. Atlantic Trust Co. v. Behrend, 15 Wash. 466 (46 Pac. Rep. 642). The assignee of a mortgage holds it subject to all the equities with which it was affected in the hands of the mortgagee. Wilson v. Ott, 173 Pa. 253 (34 Atl. Rep. 23; 51 Am. St. Rep. 767). He holds subject only to the equities existing in favor of the mortgagor, as against the assignor, and not subject to latent equities in favor of third persons in the subject involved in the assignment, of which he had no notice. Humble v. Curtis, 160 III. 193 (43 N. E. Rep. 749).

Sec. 570.

Recording

assignment - Payment to mortgagee after assignment. A written assignment of a mortgage is an instrument conveying real estate within the meaning of the Iowa recording act, but although unrecorded is good as against all persons except subsequent purchasers for value without notice. Nashua Trust Co. v. W. S. Edwards Mfg. Co., 99 Ia. 109 (68 N. W. Rep. 587; 61 Am. St. Rep. 226). It must be recorded in order to prevail over subsequent purchasers or mortgagees for value, without notice. Jenks v. Shaw, 99 Ia. 604 (68 N. W. Rep. 900; 61 Am. St. Rep. 256). In Michigan it is held that one who takes an assignment of a mortgage from one who held a prior

mortgage on the same premises takes subject to a prior, unrecorded assignment of the latter mortgage. Wilson v. Campbell, 110 Mich. 580 (68 N. W. Rep. 278; 35 L. R. A. 511). Construing and applying the registry law of Wisconsin (Rev. Stat., §§ 2241, 2242) which provide, in substance, that every conveyance of real estate which shall not be recorded as provided by law shall be void as against any subsequent purchaser thereof in good faith, whose conveyance shall be first duly recorded, and which further provide that the term "conveyance" shall be construed to embrace every written instrument by which any estate or interest in real estate is created, aliened, mortgaged, or assigned (with certain exceptions unnecessary to be stated), and that the term "purchaser " shall be construed to embrace every person to whom an estate or interest in real estate shall be conveyed for a valuable consideration, and also every assignee of a mortgage or lease or other conditional estate, it is held that an assignment of a mortgage is included within the term "conveyance," and a purchaser of a mortgage is included within the term "purchaser;" and one who takes an asignment of a mortgage which has priority of record over another mortgage cannot claim any priority over the latter unless his assignment is recorded before such mortgage is recorded. Butler v. Bank

of Mazeppa, 94 Wis. 351 (68 N. W. Rep. 998). .

Payment of the amount due upon a mortgage to the mortgagee by the mortgagor after the mortgage has been assigned, but without notice of the assignment by the mortgagor, will extinguish the mortgage. Olson v. Northwestern Guar. Loan Co., 65 Minn. 475 (68 N. W. Rep. 100). Where the note secured is negotiable, the maker is justified in paying only to the holder, and, as to him, a transferee is not required to place an assignment of the mortgage on record. Wilson v. Campbell, 110 Mich. 580 (68 N. W. Rep. 278; 35 L. R. A. 514). Where the instrument secured by the mortgage is non-negotiable and the maker has not notice of its assignment, payment made to the original payee, although made after he has assigned the instrument, will be a satisfaction of the maker's liability. Lockrow v. Cline, 4 Kan. App. 716 (46 Pac. Rep. 720). When an assignee of a non-negotiable note secured by a mortgage, who holds under an unrecorded

assignment, of which the mortgagor had no notice, authorized the mortgagee to collect the note at maturity and the mortgagor as payment thereof executed a new non-negotiable note and mortgage to such mortgagee which he assigned to another person for a pre-existing debt, without the knowledge of the first assignee, and without accounting to him, it was held that the first note and mortgage remained in force in the hands of the assignee thereof, and the second note and mortgage were subject to the defense of no consideration. Brooke v. Struthers, 110 Mich. 562 (68 N.W. Rep. 272; 35 L. R. A. 536).

Sec. 571. Payment, release and satisfaction. Where one who purchases land subject to an outstanding note and mortgage, the payment of which his grantor had assumed, afterwards purchases such note and mortgage it operates as a payment. Northwestern Nat. Bank v. Sloan, 97 Ia. 183 (66 N. W. Rep. 91). A lapse of 20 years after a mortgage has become due, within which there has not been either payment or demand of the principal or interest, or part thereof, or entry by the mortgagee into possession of the mortgaged premises, will raise a presumption that the mortgage has been satisfied, though in fact it be not paid; but this presumption was held not to apply where the mortgagor was acting as the executor of the mortgagee for a greater portion of such time during which he made no accounting and entered a satisfaction of his mortgage without making any payment thereof. Stimis v. Stimis, 54 N. J. Eq. 17 (33 Atl. Rep. 468). Where a mortgage is 20 years overdue, and there is no proof that during that period the mortgagor or his assignee in possession has made any payment upon it, or otherwise recognized its existence, it is presumed to have been paid. This presumption is not rebutted by the fact that the owner of the mortgage and the owner of the equity of redemption during this period were brother and sister. Magee v. Bradley, 54 N. J. Eq. 326 (35 Atl. Rep. 103). Particular facts held sufficient to rebut the presumption of payment arising from long lapse of time and possession of the mortgage by the mortgagor. Vaughn v. Tate, Tenn. (36 S. W. Rep. 748). A release of a mortgage is prima facie evidence of the payment