. 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.