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subsequently recorded at the same time as the title deed. Continental Inv. & L. Soc. v. Wood, 168 Ill. 421 (48 N. E. Rep. 221). The priority of a purchase money mortgage over a mortgage given by a vendee to secure a loan of money with which to make improvements, may be postponed by a parol agreement between the holders of such liens, and one taking an assignment of the purchase money notes with knowledge of such agreement, takes subject to it, though the postponed mortgage was first filed for record. Loewen v. Forsee, 137 Mo. 29 (38 S. W. Rep. 712; 59 Am. St. Rep. 489). A recital in a mortgage that the indebtedness described thereby "being for a loan thereof, made by" the mortgagee, does not estop him from showing that the mortgage was given to secure purchase money, as against one purchasing the land on a prior judgment, who is not shown to have acquired his title in reliance upon such recital. Bisbee v. Carey, 17 Wash. 224 (49 Pac. Rep. 220). The relative rights of a vendor taking a purchase money mortgage and the holder of a prior judgment against the vendee are not affected by an agreement between such vendor and his vendee giving the latter the right to execute a mortgage for such amount, which shall have priority over the purchase money mortgage. Peaslee v. Hart, 71 Minn. 319 (73 N. W. Rep. 976). Where, after a conveyance of land to two persons and their execution of a purchase money mortgage to the grantor, on account of dissatisfaction among the grantees, in pursuance of an agreement among all the parties interested, and as a substitute for the original transaction, the grantor conveys the premises to one of the original grantees and takes his mortgage to secure the purchase price, the latter instruments are valid and the mortgage will be treated as a purchase money mortgage as against all not misled into acquiring rights on the appearance of a different state of facts. Coleman v. Reynolds, 181 Pa. St. 317 (37 Atl. Rep. 543).

Sec. 590. Priority of mortgages to secure future advances. Where the mortgage given to secure future advances has priority of record the constructive notice arising from the subsequent recording of another mortgage is not, of itself, sufficient to postpone the priority of the first mortgage

for advances thereafter made, even though such advances were optional, and not obligatory. Anderson v. Liston, 69 Minn. 82 (72 N. W. Rep. 52); Union Nat. Bank v. Milburd & Stoddard Co., 7 N. Dak. 201 (73 N. W. Rep. 527); Schmidt v. Zahrndt, 148 Ind 447 (47 N. E. Rep. 335). The second case cited contains an elaborate review of the authorities upon the question of priority of mortgages to secure future advancements, and in the last case cited the court say: "In Brinkmeyer v. Browneller, 55 Ind. 487, this court declared the following propositions, sustained by the authorities: First. Where the mortgagee has bound himself to make or incur liabilities, such advances, when made, shall relate back, and the mortgage will be a valid lien for advances made or liabilities incurred against subsequent purchasers or incumbrancers with notice, actual or constructive, of the mortgage. Second. Where there is no obligation on the mortgagee, and such advances or liabilities are merely optional with him, and he has actual notice of a subsequent incumbrance or conveyance of the mortgaged premises before making advances or incurring liabilities, his lien is not good as against the subsequent purchaser or incumbrancer. See 11 Am. Law Reg. (N. S.) 273, and authorities there cited.' The authorities generally seem to sustain the first of said propositions. Brinkmeyer v. Helbling, 57 Ind. 435, 449, 450; Crane v. Deming, 7 Conn. 387; Griffin v. Burtnett, 4 Edw. Ch. 673; Boswell v. Goodwin, 31 Conn. 74 (81 Am. Dec. 169); Rowan v. Manufacturing Co., 29 Conn. 282, 329; Bank v. Cunningham, 24 Pick. 270 (35 Am. Dec. 322) and note; and note to Divver v. McLaughlin, 2 Wend. 596 (20 Am. Dec., on page 663); 15 Am. & Eng. Enc. Law, p. 799; 1 Jones, Mortg., § 370; 3 Pom. Eq. Jur., § 1199. While there is conflict in the authorities as to the doctrine declared in the second proposition, yet the same is sustained by reason and authority. Many authorities declare that if the future advances are optional, the prior mortgage, which is duly recorded, has preference over subsequent recorded mortgages or conveyances, not only for advances previously made, but also for advances made after their recording without actual notice thereof; that recording the second incumbrance does not operate as constructive notice, but actual notice is required. Brinkmeyer v. Browneller, 55

Ind. 487; Ward v. Cooke, 17 N. J. Eq. 99, and cases cited; Williams v. Gilbert, 37 N. J. Eq. 86; Sayre v. Hewes, 32 N. J. Eq. 652; Nelson's Heirs v. Boyce, 7 J. J. Marsh. 401 (23 Am. Dec. 411); McDaniels v. Colvin, 16 Vt. 300 (62 Am. Dec. 512); Boswell v. Goodwin, 31 Conn. 74 (81 Am. Dec. 169); Crane v. Deming, 7 Conn. 387; Rowan v. Manufacturing Co., 29 Conn. 282, 329; Wilson v. Russell, 13 Md. 494 (71 Am. Dec. 645); Witczinski v. Everman, 51 Miss. 841; Truscott v. King, 6 Barb. 346; Craig v. Tappin, 2 Sandf. Ch. 78; Robinson v. Williams, 22 N. Y. 380; Ackerman v. Hunsicker, 85 N. Y. 43 (39 Am. Rep. 621); Reynolds v. Webster, (Sup.) 24 N. Y. Supp. 1133; Frye v. Bank, 11 Ill. 367; Tapia v. Demartini, 77 Cal. 383 (19 Pac. Rep. 641, and cases cited; 11 Am. St. Rep. 288 and note); Ripley v. Harris, 3 Biss. 199 (Fed. Cas. No. 11,853); Conard v. Insurance Co., 1 Pet. 386; Shirras v. Caig, 7 Cranch 51; note to Divver v. McLaughlin, 2 Wend 596 (20 Am. Dec., on pages 661, 662); 15 Am. & Eng. Enc. Law, pp. 800, 801; 3 Pom. Eq. Jur. 1199; 1 Jones, Mortg., §§ 364, 368–370, 372-374; 2 Am. Law Reg. (N. S.), 19 et seq. ; 11 Am. Law Reg. (N. S). 273, and authorities cited. Chief Justice Redfield, in an article of this subject in 2 Am. Law Reg. (N. S). at page 18 said: The most important remaining inquiry is in regard to the extent and kind of notice of the subsequent mortgage which it is requisite the first mortgagee should have in order to postpone his further advances to such intervening security. As a general rule, it has been considered that the registry of the second mortgage will only be notice of its contents to future purchasers and incumbrancers, and not to prior incumbrancers; thus operating forward, and not backward. We find the law established in some states that the registry is full notice to the first mortgagee not to make further advances under his mortgage. * * But the general view of the American courts, and the uniform declaration of the English courts, as far as we know, is that nothing short of notice in fact will have this effect. It is expressed under various forms of language, but the result of the whole is that, if the first mortgagee have knowledge of the existence of a second mortgage upon the estate, he cannot give further credit upon his prior mortgage; provided it is entirely optional with

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him whether to make further advances or not. This has often been declared by judges and text writers, and may now be regarded as settled law, notwithstanding an occasional case seems to require something more.'

Sec. 591. Assumption of mortgage.-Liability of grantee. The liability of a vendee whose covenant assuming a mortgage debt is absolute on its face,to the holder of such debt, is determined by the terms of the contract of assumption between such vendee and his vendor, although contained in a contemporaneous agreement. Ellett v. McGhee, 94 Va. 377 (26 S. E. Rep. 874). Citing, Crowell v. St. Barnabas Hospital, 27 N. J. Eq. 655, 656; Keller v. Ashford, 133 U. S. 610, 625, 626 (10 Sup. Ct. Rep. 494); 1 Jones, Mort., § 764. A purchaser of mortgaged property cannot be subjected to the payment of a sum not embraced in the terms of the mortgage nor alleged to have been omitted therefrom by accident or mistake. Schaeffer v. Schaeffer, 182 Pa. St. 598 (38 Atl. Rep. 474). A grantee may defend against personal liability on a covenant of assumption fraudulently inserted in his deed by his grantor without his consent, Hull v. Vining, 17 Wash. 352 (49 Pac. Rep. 537); but he must disaffirm it immediately upon discovery of the fraud. Bogart v. Noble, 112 Mich. 697 (71 N. W. Rep. 320). The right of a grantee to assail a clause in his deed, by which he assumes the payment of a mortgage, on account of fraud in its insertion, may be waived by delay. Sutter v. Rose, 169 Ill. 66 (48 N. E. Rep. 411). A purchaser who assumes and agrees to pay an existing mortgage on the premises and deducts the amount thereof from the purchase price, cannot afterwards assail the validity of the mortgage. Cummings v. Jackson, 55 N. J. Eq. 805 (38 Atl. Rep. 763).

The acceptance of a deed by a grantee, containing a covenant to assume and pay an existing mortgage debt on the property, renders him personally liable therefore. Connor v. Jones,

S. Dak. (72 N. W. Rep. 463); Beeson v. Green, 103 Ia. 406 (72 N. W. Rep. 555); Haas v. Dudley, 30 Or. 355 (48 Pac. Rep. 168); Gibson v. Hambleton, 52 Neb. 601 (72 N. W. Rep. 1033); Thompson v. Cheesman, 15 Utah 43 (48 Pac. Rep. 477). And in Iowa and Wisconsin this lia

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bilty is held to exist whether the grantee's immediate grantor was personally liable for the debt or not. Marble Sav. Bank v. Mesarvey, 101 Ia. 285 (70 N. W. Rep. 198); Enos v. Sanger, 96 Wis. 150 (70 N. W. Rep. 1069; 65 Am. St. Rep. 38; 37 L. R. A. 862); Stites v. Thompson, 98 Wis. 329 (78 N. W. Rep. 774). It is held that a recital in a deed, after the warranty clause, "except a mortgage of $2,600 given by P. to J. which second party assumes," makes the grantee personally liable for the mortgage debt. Fehle v. Brooks, 112 Mich. 131 (70 N. W. Rep. 440). A grantee of mortgaged premises who assumes and agrees to pay the mortgaged debt as a part of the consideration, thereby becomes personally liable for any deficiency to the mortgagee. Flint v. Winter Harbor Land Co., 89 Me. 420 (36 Atl. Rep. 634).

In the case of Starbird v. Cranston, 24 Col. 20 (48 Pac. Rep. 652), the supreme court of Colorado say: "Mr. Pomeroy, in discussing the rationale of the grantee's liability, in his work on Equity Jurisprudence, uses the following language: The ground of grantee's liability adopted by the courts of a large majority of the states is that of contract. It is an application of the general doctrine, so widely prevailing in this country that it may properly be called an American doctrine. Where A. makes a promise directly to B. for the benefit of C., upon a consideration moving alone from B., C. being the party beneficially interested, may treat the promise as though made to himself, and may maintain an action at law upon it in his own name against A., the promisor. According to this generally accepted view, the liability of the grantee, who thus assumes the payment of an outstanding mortgage, does not depend upon any extension of the equitable doctrine concerning subrogation. It is strictly legal, arising out of a contract binding at law. The mortgagee, instead of enforcing the liability by a suit in equity for a foreclosure, may maintain an action at law against the grantee upon his promise, and recover a personal judgment for the whole mortgage debt.' 3 Pom. Eq. Jur., § 1207. Among the adjudicated cases announcing this rule are Burr v. Beers, 24 N. Y. 178 (70 Am. Dec. 327); Thorp v. Coal Co., 48 N. Y., 253; Dean v. Walker, 107 Ill. 540 (47 Am. Rep. 467); Bay v. Williams, 112 Ill. 91 (54 Am. Rep. 209); Schumucker v.

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