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Browsing: Legal Papers of John Adams, Volume 1


This foot note contained in document ADMS-05-01-02-0006-0001-0001
13. Although few cases in point have been found, modern authorities agree that a second mortgagee can insist that, as between himself and the mortgagor, the latter rather than the land shall bear primary liability for the mortgage debt, on the theory that the second mortgagee has received no reduction as consideration for the prior encumbrance. See A. James Casner, ed., American Law of Property, vol. 4, §16.127 (Boston, 1952); Osborne, Mortgages 697; Herbert T. Tiffany, The Law of Real Property, 5:371 (Chicago, 3d edn., 1939); Glenn, “Purchasing Subject to Mortgage. First Phase: Mortgagor's Rights Against Grantee,” 27 Va. L. Rev. 853, 855 (1941). Compare Samuel Carter, Lex Vadiorum 100–103 (London, 2d edn., 1728). In holding that even where a second mortgagee had assumed the senior mortgage debt by express agreement, the senior mortgagee could not join him as defendant in a deficiency suit, the Court of Appeals of New York stated as a general proposition underlying this result that “Where a party, taking from his debtor a lien on property subject to prior liens, assumes and pays them off, he is certainly entitled to add the amounts so paid to his original debt; the payments, though made in pursuance of his agreement, are made for the benefit of the debtor, and upon his debts, and to protect him and his property.” Garnsey v. Rogers, 47 N.Y. 233, 240 (1872). In Bassett v. Mason, 18 Conn. 131 (1846), however, the court held the mortgagor entitled to an injunction barring a junior mortgagee who had foreclosed his own mortgage and then had bought in two prior encumbrances from suing on the note secured by the first mortgage. This result may be reconcilable with Prout. Although the Connecticut court seems to have assumed that the land was worth less than the face value of the encumbrances, the amounts which the mortgagee actually paid for them do not appear and may well have been less than the land value. If the cases are not reconcilable, Prout is more consistent with the general principles of strict foreclosure. In Bassett the court seems to have based its conclusion that the land was the primary fund for payment of the debt upon New York cases, cited by counsel, in which the junior encumbrancer had acquired his title by buying in at his own foreclosure sale, rather than through entry and foreclosure. 18 Conn. 131, at 134, 137. See Cox v. Wheeler, 7 Paige 248 (N.Y. Ch. 1838); McKinstry v. Curtis, 10 Paige 503 (N.Y. Ch. 1844). A similar result has been reached in a modern view, on the theory that by virtue of the conditions of sale the junior encumbrancer in such a situation is like any other purchaser and so agrees that the land will be primarily liable. See Osborne, Mortgages 768–769. Compare text at note 12 above.