consideration of past indebtedness, takes subject to all the equities existing between the original parties; and where the assignment recites that it is "in consideration of advances made by" the assignee, in the absence of evidence to the contrary, it will be presumed that the advancements were made before the assignment. Egan v. Raysor, 49 S. C. 469 (27 S. E. Rep. 475). A mortgage has none of the privileges of negotiable paper, but it is a mere chose in action which an assignee takes subject to any defense existing between the original parties, unless they are estopped by their acts or otherwise from asserting it as against the assignee; but he does not take it subject to any equities of third parties of which he has no notice. Moffet v. Parker, 71 Minn. 139 (73 N. W. Rep. 850). To the same effect is the case of Equitable Sec. Co. v. Talbert, 49 La. 1393 (22 So. Rep. 762). In Missouri it is held that a purchaser in good faith, for value, before maturity, of a negotiable promissory note secured by mortgage upon real estate, takes the security which passes as incident to the note, free from the equities existing between the original parties. First Nat. Bank v. Rohrer, 138 Mo. 369 (39 S. W. Rep. 1047); Crawford v. C. Aultman & Co., 139 Mo. 262 (40 S. W. Rep. 952). Mere assignment of a note secured by a mortgage containing a power of sale does not transfer to the assignee the power of sale, and a sale by him under the power amounts merely to an equitable assignment of the note and mortgage. Hussey v. Hill, 120 N. C. 312 (26 S. E. Rep. 919; 58 Am. St. Rep. 789). One holding under an assignment of a mortgage absolute on its face, may maintain in his own name an action to foreclose it, although he is bound by an independent agreement to account for the proceeds to another. Ingham v. Weed, Cal. (48 Pac. Rep. 318). taking an assignment of a mortgage with full knowledge of the transaction concerning the loan to secure which it was given, is estopped to claim that the mortgage was void because given in an ultra vires transaction. Woodcock v. First Nat. Bank, 113 Mich. 236 (71 N, W. Rep. 477).

One

The

Sec. 598. Recording assignment of mortgage. rights of an assignee of a mortgage holding under an unrecorded assignment of it, are postponed to the rights of a sub

sequent bona fide purchaser of the mortgaged property without notice of the assignment and in reliance upon a satisfaction duly entered of record by the original mortgagee. Porter v. Ourada, 51 Neb. 510 (71 N. W. Rep. 52). An assignment of a mortgage is a conveyance within the meaning of Mass. Pub. Stat., ch. 120, § 4, and must be recorded in order to prevail over a subsequent purchaser or mortgagee without notice. Swasey v. Emerson, 168 Mass. 118 (46 N. E. Rep. 426; 60 Am. St. Rep. 368). One claiming under an unrecorded assignment of a mortgage cannot prevail against one holding notes secured by a subsequent mortgage taken in reliance upon a subsequent recorded release of the first mortgage, executed and recorded by the mortgagee. Commonwealth v. Globe Inv. Co., 168 Mass. 80 (46 N. E. Rep. 410). In New York it is not necessary to record an assignment of a recorded mortgage as against a subsequent purchaser of the mortgaged premises, but only against the subsequent purchaser of the mortgage itself. Curtis v. Moore, 152 N. Y. 159 (46 N. E. Rep. 168). Under N. J. Rev., p. 708, § 32, the recording of an assignment of a mortgage is notice, from the time the assignment is left for record, to all persons concerned, that the mortgage is assigned. A subsequent assignee of the . mortgagee is a" person concerned," within the meaning of this statute, and must be held to have had constructive notice of the previous assignment, from the date when it was deposited for record. Mott v. Germau Hospital, 55 N. J, Eq. 722 (37 Atl. Rep. 757). In Indiana the assignment of a mortgage must be made "in writing either upon the margin of the record where such mortgage is recorded or by written instrument" which must be recorded by the assignee under penalty of a loss of ten per cent of the mortgage indebtedness. Laws 1899, p. 191. Kansas has a statute requiring the recording of assignments of real estate mortgages, Laws 1899, p. 340, repealing Sess. Laws 1897, ch. 160. Certain defective assignments of mortgages and their records are legalized by Kan. Laws 1899, p. 319. Under Utah Comp. Laws 1888, §§ 2613, 2645, an assignment of a mortgage must be recorded in order to give notice to subsequent grantees, mortgagees and lien holders. Donaldson v. Grant, 15 Utah 231 (49 Pac. Rep. 779).

Sec. 599. Assignment of mortgages-Payment to mortgagee afterward. A payment by a purchaser of part of the mortgaged premises to a mortgagee who has previously assigned both notes and mortgage, is not good as against his assignee when made without his knowledge or consent, after he had recorded his assignment and had possession of the notes. Woodward v. Brown, 119 Cal. 283 (51 Pac. Rep. 2; 63 Am. St. Rep. 108). A mortgagor without notice of an unrecorded assignment of the mortgage by the mortgagee may defend against an action of foreclosure by the assignee by showing subsequent payment to the mortgagee. McAuliffe v. Reuter, 166 Ill. 491 (46 N. E. Rep. 1087); Beuhler v. Mc Cormick, 169 Ill. 269 (48 N. E. Rep. 287). Minn. Gen. Stat. 1894, § 4183, providing that the assignment of a mortgage is not constructive notice to the mortgagor, his heirs and personal representatives, so as to invalidate any payment made by either of them to the mortgagee, applies only to the persons therein named, and has no application to a second mortgagee, or an assignee of his mortgage. As between an assignee of a first mortgage, whose assignment was duly recorded before the making of a second mortgage, and the assignee of such second mortgage, the latter is not entitled to have the first mortgage cancelled on the ground that, after the assignment of the first mortgage, it was paid to the mortgagee without actual notice of the assignment. Robbins v. Larson, 69 Minn. 436 (72 N. W. Rep. 456; 65 Am. St. Rep. 572). Where a second mortgagee for money loaned, who agrees with the mortgagor to pay the money in discharge of the first mortgage, securing a negotiable note, pays it to the original mortgagee after he has assigned the mortgage, he does so at his peril. Porter v. Ourada, 51 Neb. 510 (71 N. W. Rep. 52); Herbage v. Moodie, 51 Neb. 837 (71 N. W. Rep. 778)

Sec. 600. What constitutes payment-Presumptions. Actual production of the money is not necessary to constitute a sufficient tender of payment to a mortgagee where he refuses to accept it, knowing that the debtor has the money at hand. Smith v. Old Dominion Bldg. & L. Ass'n, 119 N. C. 257 (26 S. E. Rep. 40). An equitable assignment of a mortgage to the mortgagor operates to discharge it. Hussey

v. Hill, 120 N. C. 312 (26 S. E. Rep. 919; 58 Am. St. Rep. 789). An assignment of a mortgage, taken in his individual capacity, without authority from a probate court, by an executor of a grantee who has assumed its payment, does not operate as a payment so as to extinguish the mortgage and let in a judgment creditor of an intermediate grantee. Keet v. Baker, 141 Mo. 175 (42 S. W. Rep. 940). Where persons who are obligated only to pay a portion of a mortgage debt, after the payment of such portion pay the balance due, such payment does not extinguish the mortgage as to such balance. Ingham v. Weed, Cal. (48 Pac. Rep. 318). Where property is sold upon a mortgage foreclosure and bid in by the parties interested for the amount of the debt, it will operate as a payment of the mortgage although no deed was ever made in pursuance of the sale. Brown v. Tucker, Tenn. (39 S. W. Rep. 346). Where a widow having a dower interest in land mortgaged by her husband, pays the amount of the mortgage debt to the mortgagee, who delivers the mortgage to her, under an agreement that if her rights in the estate are litigated she will redeliver the mortgage to him, and he the money to her, which return of the mortgage and money is subsequently made on account of the existence of the condition, the transaction does not amount to a payment of the mortgage debt. Becker v. Carey, N. J. Eq. (36 Atl. Rep. 770). Where, at the time of the execution of a mortgage for $2,200, it was agreed that the mortgagor was to pay one-half of that sum for the land, to finish a building thereon, and pay the cost of the material for it, which the mortgagee was to furnish, and it was stipulated that the cost of the estate and of the material "whether more or less than said $2,200 shall be received in payment of such note and in discharge of said mortgage," it is held that a payment of $2,200 would discharge the mortgage, though a greater sum was due under the agreement. Ford v. Davis, 168 Mass. 116 (46 N. E. Rep. 435). A lapse of twenty years without demand or acknowledgment of the mortgage debt, raises a conclusive presumption of its payment. Blue v. Everett, 55 N. J. Eq. 329 (36 Atl. Rep. 960); Staples v. Staples, 20 R. I. 264 (38 Atl. Rep. 438). In order to rebut a presumption of payment arising from lapse of time, by an endorsement on the obligation, it must be shown to

be genuine and to have been made before the presumption of payment had ripened. Hart v. Bucher, 182 Pa. St. 604 (38 Atl. Rep. 472). Particular evidence examined and held to show that there was no payment of principal or interest on a mortgage debt for 20 years. Blue v. Everett, 55 N. J. Eq. 329 (36 Atl. Rep. 960). Applying N. C. Code, § 1271, it is held that it is competent to interpose as evidence of payment of a mortgage indebtedness, the entry of "satisfaction" on the margin of the record signed by the mortgagee and witnessed by the register of deeds. Robinson v. Sampson, 121 N. C. 99 (28 S. E. Rep. 189). Particular evidence held insufficient to show payment of a mortgage indebtedness. Johnson v. Johnson, 101 Ia. 405 (70 N. W. Rep. 598). Particular evidence held insufficient to show a gift of a mortgage to the mortgagor by the mortgagee. In re Schiehl's Estate, 179 Pa. St. 308 (36 Atl. Rep. 181). The presumption of an intention to extinguish the mortgage which arises when the owner of the mortgaged premises pays it off, is not overcome by his purchasing the mortgage and taking a transfer of it to himself, where there is nothing to show that it would be to his interest to keep the mortgage alive. Bradford v. Burgess, 20 R. I. 290 (38 Atl. Rep. 975).

Sec. 601. Payment of mortgage debt to clerk of court after commencement of foreclosure proceedings. Where, after the commencement of an action to foreclose a real estate mortgage for the entire debt, but before judgment, the mortgagors, in vacation, without an order of court or plea, deposited with the clerk of the court the full amount of the mortgage debt and all costs, which money was embezzled by the clerk who afterwards absconded, it was held that he did not receive the money by virtue of his office, but in his individual capacity, as a mere agent of the mortgagors, and that such deposit of the money did not extinguish the mortgage. Irvine and Ragan, CC., dissenting. Commercial Investment Co. v. Peck, 53 Neb. 204 (73 N. W. Rep. 452). The court say: "The legislature of this state has provided (Code of Civil Procedure, § 889) 'the clerk of each of the courts shall exercise the powers and perform the duties conferred and imposed upon him by other provisions of this Code, by other statutes,