selves in replevin.204 In some of the states, however, in which the legal title is regarded as in the mortgagee, as well as in those in which the equitable theory prevails, the mortgagee's lien or title is regarded as divested by the severance, so that he cannot assert any rights in the things severed.2

205

Occasionally it is said that there is no right of action as for the injury to the security unless such injury is shown by the existence of a deficiency on foreclosure,206-a rule calculated to affect the mortgagee adversely by compelling him to defer his action for damages until after foreclosure. In states where the legal title is in the mortgagee, however, the mortgagee's right of action is independent of the sufficiency of the security, he being entitled to the whole security pledged. 207

Remedies of the mortgagor.

The mortgagee, if in possession, owes the duty to the mortgagor not to commit waste, and may be restrained from so doing by injunction,208 and may be required to account for ell, 43 N. H. 390; Frothingham v. McKusick, 24 Me. 403; Angier v. Agnew, 98 Pa. St. 587, 42 Am. Rep. 624.

204 Dorr v. Dudderar, 88 Ill. 107. And see Mosher v. Vehne, 77 Me. 169; Searle v. Sawyer, 127 Mass. 491, Kirchwey's Cas. 427.

205 Cooper v. Davis, 15 Conn. 556, Kirchwey's Cas. 416; Buckout v. Swift, 27 Cal. 433, 87 Am. Dec. 90; Harris v. Bannon, 78 Ky. 568; Clark v. Reyburn, 1 Kan. 281; Kircher v. Schalk, 39 N. J. Law, 335; Peterson v. Clark, 15 Johns. (N. Y.) 205; Hamlin v. Parsons, 12 Minn. 108 (Gil. 59), 90 Am. Dec. 284. Compare Verner v. Betz, 46 N. J. Eq. 256, 19 Am. St. Rep. 387.

208 Taylor v. McConnell, 53 Mich. 587; Lavenson v. Standard Soap Co., 80 Cal. 245, 13 Am. St. Rep. 147. And see Lane v. Hitchcock, 14 Johns. (N. Y.) 213; Gardner v. Heartt, 3 Denio (N. Y.) 232.

207 Byrom v. Chapin, 113 Mass. 308; Gooding v. Shea, 103 Mass. 360, 4 Am. Rep. 563. See Leavitt v. Eastman, 77 Me. 117. But in King v. Bangs, 120 Mass. 514, the fact that the premises were sold under the mortgage for sufficient to pay the debt was held to be admissible in mitigation of damages.

208 Farrant v. Lovel, 3 Atk. 723; Youle v. Richards, 1 N. J. Eq. 534, 23 Am. Dec. 722; Givens v. McCalmont, 4 Watts (Pa.) 460.

any loss resulting therefrom.209 He is not, however, liable as for permissive waste in failing to keep the premises in repair, or for improper cultivation of the land, unless he has been guilty of gross negligence in that respect.2

III. THE TRANSFER OF MORTGAGED LAND.

The mortgagor may transfer the mortgaged land to another person, in which case the transferee succeeds to the rights and liabilities of the mortgagor.

The transferee, by an express stipulation to that effect with the mortgagor, may become personally liable for the mortgage debt, and, as regards the latter, he is in such case the principal debtor to the mortgagee, while the mortgagor is surety only. While this change of relation does not effect the right of the mortgagee to enforce the personal obligation of the mortgagor, he is, by some decisions, bound to recognize it. The personal liability of the transferee may usually be enforced by the mortgagor, though in some states this can be done in equity only.

The transferee of land who agrees to pay the mortgage, or takes a transfer expressly stating that the land is subject to the mortgage, cannot question the validity of the mortgage.

In case of the transfer of different parts of the land at different times by conveyances which do not impose any obligation on the transferees of paying the mortgage, and which do, by reason of covenants for title or otherwise, impose such obli. gation on the transferrer, the parts are liable to the enforcement of the mortgage lien in the inverse order of alienation.

525. General considerations.

The mortgagor may, as before stated, convey or devise the mortgaged land, it may be sold on execution, and it passes,

300 Sandon v. Hooper, 6 Beav. 246, Kirchwey's Cas. 511; Perdue v. Brooks, 85 Ala. 459.

210 Russel v. Smithies, 1 Anstr. 96, Kirchwey's Cas. 507; Wragg v. Denham, 2 Younge & C. 117, Kirchwey's Cas. 507; Dexter v. Arnold, 2 Sumn. 108, Fed. Cas. No. 3,858, Kirchwey's Cas. 522.

on his death intestate, to his heirs, or to his personal representatives, if his estate is less than freehold. The grantee, devisee, heir, or personal representative takes the land subject to the mortgage, but with the rights of the mortgagor. He may redeem from the mortgage,211 and may require a mortgagee in possession to account for the rents and profits.212 He stands generally in the same position as regards the mortgage on the land as did his predecessor in interest, and he has no greater rights, since the rights of the mortgagee cannot be impaired by a transfer of the land.

-Transfer to mortgagee.

After the making of the mortgage, the mortgagor and mortgagee may deal with each other as any other individuals, and a conveyance or release by the mortgagor to the mortgagee of his interest in the mortgaged land is valid, provided, in view of the peculiar relation of the parties, the absence of circumstances of fraud and oppression is clearly shown.218 Occasionally it is stated that such a transfer by

211 See post, § 541.

212 Strang v. Allen, 44 Ill. 428; Gaskell v. Viquesney, 122 Ind. 244, 17 Am. St. Rep. 364; Long v. Richards, 170 Mass. 120; Ruckman v. Astor, 9 Paige (N. Y.) 517.

218 Peugh v. Davis, 96 U. S. 332; Seymour v. Mackay, 126 Ill. 341; Wynkoop v. Cowing, 21 Ill. 570; Baugher v. Merryman, 32 Md. 185; Trull v. Skinner, 17 Pick. (Mass.) 213, Kirchwey's Cas. 445; Odell v. Montross, 68 N. Y. 499, Kirchwey's Cas. 460; Shaw v. Walbridge, 33 Ohio St. 1; Hall v. Hall, 41 S. C. 163, 44 Am. St. Rep. 696; Green v. Butler, 26 Cal. 595, Kirchwey's Cas. 448.

Such a conveyance by a mortgagor to the mortgagee, which takes effect, strictly speaking, by way of release, is to be distinguished from an attempted release or waiver by the mortgagor of the right to redeem. The statement quite frequently made, that the mortgagor may release his equity of redemption by an agreement, subsequent to the mortgage, but not contemporaneous therewith, seems to involve a confusion of thought, arising from the double use of the term "equity of redemption." See ante, note 7. The time of the transaction is immaterial. The mortgagor cannot waive his right of re

the mortgagor to the mortgagee must be supported by an adequate consideration, 214 but in other cases this is denied, and it would seem that this requirement, so far as it exists, merely means that the fact that the mortgagor could obtain a higher price from another purchaser is strong, if not conclusive, evidence of fraud or oppression. 215 Such subsequent transfer, moreover, though absolute in form, may, like any other absolute transfer, be shown not to be so intended, but to be merely for the purpose of enabling the mortgagee to secure his debt.21

526. Personal liability of the transferee.

The mortgagor's transferee is not personally liable for the mortgage debt unless he expressly or impliedly agrees to pay it, though the land is always liable for the amount of the mortgage, provided the transferee has actual or constructive notice of its existence.217 And so the fact that the land

demption by an agreement contemporaneous with or subsequent to the mortgage, because a mortgage without the right of redemption is not recognized by the courts. He may, however, convey the land to the mortgagee,-not, of course, contemporaneously with the mortgage, because that would be impossible, but subsequently thereto,and this he can do for the simple reason that he is owner of the land. 214 Villa v. Rodriguez, 12 Wall. (U. S.) 323, Kirchwey's Cas. 453; Odell v. Montross, 68 N. Y. 499, Kirchwey's Cas. 460; Linnell v. Lyford, 72 Me. 280; Hyndman v. Hyndman, 19 Vt. 9, 46 Am. Dec. 171. The transfer "must be for a consideration which would be deemed reasonable if the transaction were between other parties dealing in similar property in its vicinity." Peugh v. Davis, 96 U. S. 332.

215 That the consideration need not be adequate, see Coote, Mortgages, 21; Waters v. Groom, 11 Clark & F. 684; De Martin v. Phelan 115 Cal. 538, Kirchwey's Cas. 465; West v. Reed, 55 Ill. 242. See Hicks v. Hicks, 5 Gill & J. (Md.) 75; Trull v. Skinner, 17 Pick. (Mass.) 213, Kirchwey's Cas. 445.

216 Vernon v. Bethell, 2 Eden, 110; Villa v. Rodriguez, 12 Wall. (U. S.) 323, Kirchwey's Cas. 453; Tower v. Fetz, 26 Neb. 706, 18 Am. St. Rep. 795; Baugher v. Merryman, 32 Md. 185. See, ante, § 512. 217 Strong v. Converse, 8 Allen (Mass.) 557, 85 Am. Dec. 782; Com.

is in terms conveyed "subject to" the mortgage imposes no personal liability on him.218

An agreement by the grantee to pay the mortgage, or a statement that he assumes it, makes him personally liable for the amount thereof.219 In order thus to impose a personal liability on him by reason of a clause in the conveyance, it is not necessary that the grantee himself sign the conveyance, its acceptance by him being regarded as sufficient.220 Even though there is no clause in the conveyance imposing a personal liability upon the transferee, he may assume such liability by a collateral agreement, either writ

stock v. Hitt, 37 Ill. 542; Trotter v. Hughes, 12 N. Y. 74, 62 Am. Dec. 137; Fiske v. Tolman, 124 Mass. 254, 26 Am. Rep. 659; Fowler v. Fay, 62 Ill. 375; Lewis v. Day, 53 Iowa, 575; Tanguay v. Felthousen, 45 Wis. 30; Elliott v. Sackett, 108 U. S. 132; Hall v. Mobile & M. Ry. Co., 58 Ala. 10; Green v. Hall, 45 Neb. 89; Guernsey v. Kendall, 55 Vt. 201; Gerdine v. Menage, 41 Minn. 417.

218 Elliott v. Sackett, 108 U. S. 132; Fiske v. Tolman, 124 Mass. 254, 26 Am. Rep. 659; Lewis v. Day, 53 Iowa, 575; Shepherd v. May, 115 U. S. 505; Moore's Appeal, 88 Pa. St. 450; Dunn v. Rodgers, 43 Ill. 260; Post v. Tradesmen's Bank, 28 Conn. 420; Dean v. Walker, 107 Ill. 540, 47 Am. Rep. 467; Green v. Turner, 38 Iowa, 112; Woodbury v. Swan, 58 N. H. 380; Bennett v. Bates, 94 N. Y. 354; Green v. Hall, 45 Neb. 89; Tanguay v. Felthousen, 45 Wis. 30; Belmont v. Coman, 22 N. Y. 438, 78 Am. Dec. 213.

219 Farmers' Nat. Bank v. Gates, 33 Or. 388, 72 Am. St. Rep. 724; Campbell v. Smith, 71 N. Y. 26, 27 Am. Rep. 5; Trotter v. Hughes, 12 N. Y. 74, 62 Am. Dec. 137; Furnas v. Durgin, 119 Mass. 500, 20 Am. Rep. 341; Keller v. Ashford, 133 U. S. 610; Taylor v. Whitmore, 25 Mich. 97; Taylor v. Preston, 79 Pa. St. 436; Birke v. Abbott, 103 Ind. 1, 53 Am. Rep. 474; Rice v. Sanders, 152 Mass. 108, 23 Am. St. Rep. 804; Green v. Stone, 54 N. J. Eq. 387, 55 Am. St. Rep. 577.

220 Finley v. Simpson, 22 N. J. Law, 311, 53 Am. Dec. 252; Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; Furnas v. Durgin, 119 Mass. 500, 20 Am. Rep. 341; Davis v. Hulett, 58 Vt. 90; Dean v. Walker, 107 Ill. 540, 47 Am. Rep. 467; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556; Bowen v. Beck, 94 N. Y. 86, 46 Am. Rep. 124; Keller v. Ashford, 133 U. S. 610; Crawford v. Edwards, 33

(1817)