Sibert, 18 Kan. 104 (26 Am. Rep. 765); Urquhart v. Brayton, 12 R. I. 169; Ross v. Kennison, 38 Ia. 396; Rogers v. Gosnell, 58 Mo. 589; Merriman v. Moore, 90 Pa. St. 78; Follansbee v. Johnson, 28 Minn. 311 (9 N. W. Rep. 882); Bassett v. Hughes, 43 Wis. 319; Bliss, Code Pl., § 128."

Sec. 592. Assumption of mortgage-Parol agreement to assume. A parol agreement of a grantee to assume and pay an incumbrance as a part of the consideration for which the deed is made is valid and may be enforced. But such agreement must be established by evidence that is clear and convincing and it cannot be established by inference. Ordway v. Downey, 18 Wash. 412 (51 Pac. Rep. 1047; 63 Am. St. Rep. 892). The court cite in support of the first proposition the following authorities: Strohauer v. Voltz, 42 Mich. 444 (4 N. W. Rep. 161); 2 Warv. Vend., p. 663; Wilts. Mort. Forec., p. 274, § 224; Merriman v. Moore, 90 Pa. St. 78; McDill v. Gunn, 43 Ind. 315; Lamb v. Tucker, 42 Ia. 118; Tainor v. Hemmingway, 18 Hun. 458, affirmed in 83 N. Y. 610; Wilson v. King, 23 N. J. Eq. 150; 1 Jones Mortg. (5th Ed.), § 750, p. 703; Drury v. Improvement Co., 13 Allen 168; Society v. Haines, 47 O. St. 423 (25 N. E. Rep. 119); note to Klapworth v. Dressler, 2 Beasley Ch. 62 (78 Am. Dec. 84), and additional authorities there cited. In Missouri it is held that parol evidence is admissible to establish an agreement of assumption by a vendee for the purpose of placing the vendor in the attitude of a surety as to the assumed debt, without proof that the holder of the debt had notice of such agreement. Nelson v. Brown, 140 Mo. 580 (41 S. W. Rep. 960; 62 Am. St. Rep. 755).

Sec. 593. Assumption of entire mortgage debt by grantee of part of mortgaged land. When a mortgagor grants the mortgaged premises in separate parcels, and at different times, he may, as between himself and his grantees (though not as against the mortgagee), burden one tract with the entire debt, and release the remainder; and when he deeds one parcel to a grantee, who assumes and agrees to pay the entire mortgage debt, and subsequently, by warranty deed, conveys the balance of the land, as between these three persons and the subsequent grantees with notice, the tract first

conveyed is, in equity, the primary fund, which must be exhausted before the other tract subsequently conveyed can be applied to the payment of the debt, although a subsequent grantee of the portion first conveyed agrees only to pay a proportionate part of the debt. Skinner v. Harker, 23 Colo. 333 (48 Pac. Rep. 648). Where a vendee of a part of mortgaged premises fails to perform his covenant to pay the entire mortgage debt and save his vendor harmless therefrom, the latter may recover from him the value of the property retained which was sold upon foreclosure sale with the portions conveyed to satisfy the mortgage debt. Haas v. Dudley, 30. Or. 355 (48 Pac. Rep. 168).

Sec. 594. Surety relation of mortgagor-Extensions. Where a grantee of the mortgagor assumes the mortgage debt, as between them and all persons claiming under the grantee, the land becomes the primary fund for the payment of the debt. Harrison v. Masterson, 91 Tex. 171 (41 S. W. Rep. 482). Where a mortgagor's grantee agrees to pay the mortgage, as between themselves the latter is principal and the former is surety, but the holder of the mortgage may treat both as principals. Thompson v. Cheesman, 15 Utah 43 (48 Pac. Rep. 477). See opinion for collation of authorities. In Utah it is held that a purchaser who assumes the payment of an existing mortgage thereby becomes the principal debtor and the mortgagor is surety of the debt merely, and an extension of the time of payment of the mortgage by an agreement between the holder of it and the purchaser without the consent of the mortgagor, discharges the mortgagor from liability under it. Schroeder v. Kinney, 15 Utah 462 (49 Pac. Rep. 894). The same is held in Missouri. Nelson v. Brown, 140 Mo. 580 (41 S. W. Rep. 960; 62 Am. St. Rep. 755). Citing, Home Nat. Bank v. Estate of Waterman, 134 Ill. 461 (29 N. E. Rep. 503); Insurance Co. v. Hanford, 27 Fed. Rep. 588; Spencer v. Spencer, 95 N. Y. 353; George v. Andrews, 60 Md. 26 (45 Am. Rep. 706); Calvo v. Davies, 73 N. Y. 211 (29 Am. Rep. 130); Fish v. Hayward, 28 Hun 456; Murray v. Marshall, 94 N. Y. 611; Insurance Co. v. Hanford, 143 U. S. 187 (12 Sup. Ct. Rep. 437); Metz v. Todd, 35 Mich. 473; Remsen v. Beekman, 25 N. Y. 552;

Hurd v. Callahan, 9 Abb. N. C. 374; Jester v. Sterling, 25 Hun 577: King v. Baldwin, 2 Johns. Ch. 559.

Sec. 595. Assumption of mortgage-Who may maintain action on grantee's covenant, and when. One to whom a mortgage debt is payable may maintain an action in his own name against a grantee assuming and agreeing to pay such debt, Morgan v. South Milwaukee Lake View Co., 97 Wis. 275 (72 N. W. Rep. 872); and so may his assignee. Starbird v. Cranston, 24 Colo. 20 (48 Pac. Rep. 652). In Virginia it is held that an action for personal judgment in such a case may be brought in a jurisdiction where the parties may be found although it be different from that in which the mortgaged land is located. Tatum v. Ballard, 94 Va. 370 (26 S. E. Rep. 871). After a mortgagee has notice and assents to a covenant of a grantee assuming his mortgage, his right of action on such covenant cannot be divested by a voluntary rescision thereof by the contracting parties. Gibson v. Hambleton, 52 Neb. 601 (72 N. W. Rep. 1033); Starbird v. Cranston, 24 Colo. 20 (48 Pac. Rep. 652). In Iowa it is held that an action may be maintained against such a grantee on his covenant, without first foreclosing the mortgage. Beeson v. Green, 103 Ia. 406 (72 N. W. Rep. 555). Citing, Burr v. Beers, 24 N. Y. 178 (80 Am. Dec. 327): Follansbe v. Menage, 28 Minn. 311 (9 N. W. Rep. 882); Campbell v. Smith 71 N. Y. 26 (27 Am. Rep. 5). Where a grantee of real estate, as a part of the consideration for the purchase, assumes and agrees in the deed to pay a certain mortgage on the premises, he is liable for the mortgage debt, and the grantor immediately upon the maturity of the mortgage, the grantee having failed to pay the same, may recover from the grantee the amount due thereon, although the grantor may have paid no part of it. Baldwin v. Emory, 89 Me. 496 (36 Atl. Rep. 994), overruling Burbank v. Gould, 15, Mo. 118; Kreling v. Kreling, 118 Cal. 413 (50 Pac. Rep. 546); Stichter v. Cox, 52 Neb. 532 (72 N. W. Rep. 848). Citing, Stout v. Folger, 34 Ia. 71 (11 Am. Rep. 138); Rubens v. Prindle, 44 Barb. 336; Wilson v. Stilwell, 9 O. St. 467; Rawson's Adm'x v. Copland, 2 Sandf. ch. 278; Furnas v. Durgin, 119 Mass. 500 (20 Am. Rep. 341); Locke v. Homer,

131 Mass. 93 (41 Am. Rep. 199); Farnsworth v. Boardman, 131 Mass. 115; Reed v. Paul, 131 Mass. 129; Gage v. Lewis, 68 Ill. 604; Churchill v. Hunt, 3 Denio, 321; Thomas v. Allen, 1 Hill 145; Jones v. Parks, 78 Ind. 537.

Sec. 596. Assignment of mortgage-What constitutes. A transfer of the mortgage debt carries the mortgage with it. Franke v. Neisler, 97 Wis. 364 (72 N. W. Rep. 887); Mutual Benefit Life Ins. Co. v. Huntington, 57 Kan. 744 (48 Pac. Rep. 19); Perkins v. Gumbel, 49 La. 653 (21. So. Rep. 743). Applying La. Rev. Civ. Code, art. 2615. An equitable assignment of a negotiable promissory note secured by a mortgage may be made by a sale and delivery thereof by the person to whose order the note is payable, without an endorsement of the note or a formal assignment in writing of the mortgage or note; and such purchaser may maintain an action in his own name to foreclose said mortgage. Greely State Bank v. Line, 50 Neb. 434 (69 N. W. Rep. 966). Citing, Nelson v. Ferris, 30 Mich. 497; Haescig v. Brown, 34 Mich. 502; Baker v. Armstrong, 57 Ind. 189; Andrews v. Powers, 35 Wis. 644; Kamena v. Huelbig, 23 N. J. Eq. 78;: Strause v. Josephthal, 77 N. Y. 622; Younker v. Martin, 18 Ia. 143; Crain v. Paine, 4 Cush. 483 (50 Am. Dec. 807). A transfer by the delivery of a bond and mortgage belonging to his estate, made by an executor to his successor, under an order of court, will operate as an assignment. Daly v. New York & G. L. Ry. Co., 55 N. J. Eq. 595 (38 Atl. Rep. 202). A full and formal assignment in writing of a bond and mortgage given to secure it executed under the seal of the holder for a valuable consideration then paid which is delivered to the assignee is effectual to pass to him title to the bond and mortgage by way of pledge without actual delivery of the latter. Mott v. German Hospital, 55 N. J. Eq. 722 (37 Atl. Rep. 757). For the purpose of preserving a mortgagor's right to redeem, a conveyance of the mortgage by the mortgagee to a purchaser of the equity of redemption at an execution sale will be held an assignment, and not an extinguishment of the mortgage. Felker v. Mowry, N. H. (38 Atl. Rep. 726). A deed by a mortgagee who has purchased the premises at a void foreclosure sale, which purports to convey only

the legal title to the land, has the effect of an assignment of the mortgage. Smithson Land Co. v. Brautigam, 16 Wash. 174 (47 Pac. Rep. 434).

In Arkansas, where a mortgage is simply a right to hold the land as security for the payment of the mortgage debt, it is held that one to whom a decree foreclosing a mortgage had been granted, could only convey her interest in such decree by its assignment, and that it did not pass by her executing a mortgage on the land, although at the time she was the owner of a dower interest therein. Bunn, C. J., and Riddick, J., dissenting. Polk v. Simon, 63 Ark. 569 (39 S. W. Rep. 1045). Citing, Purdy v. Huntington, 43 N. Y. 334 (1 Am. Rep. 532); Swan v. Yaple, 35 Ia. 248. Where a second mortgagee obtained a judgment and decree of foreclosure, which was void on account of want of due service of the summons, assigned as collateral security to an intervening party this judgment and decree, and all right, title and interest which he had therein, and in and to the debts therein described, and in and to the mortgaged premises which might be acquired by said decree, and in and to the proceedings of any sale thereunder, it is held that, notwithstanding the invalidity of the judgment of foreclosure, the assignment operated as an assignment of the mortgage and the debt secured thereby, and of the rents and profits to which the assignor was entitled, as a mortgagee in possession. Anderson v. Minnesota Loan & T. Co., 68 Minn. 491 (71 N. W. Rep. 665). Where a third party, at the request of one of the defendants in a decree of foreclosure, paid to the holder thereof a large proportion of the amount of the decree, and another defendant paid the necessary balance, and took from the mortgagee an assignment of the mortgage and decree, there being no agreement as to when his money should be repaid, or extending time of sale, or limiting his rights, it is held that the transaction did not amount to the making of a new mortgage, so as to require a new decree before sale, and that such person had all the rights of the holder of such decree. Walker v. Lillibridge, 112 Mich. 384 (70 N. W. Rep. 1031).

Sec. 597. Assignment of mortgage-Title and rights of assignee. One who takes an assignment of a mortgage in