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and by the common law. In the performance of his duties he shall be under the direction of his court.' The clerk of the district court of Dawes county did not receive the money under and by virtue of any order of the court below, requiring the payment to be made, for the very obvious reason no such order was ever entered. Moreover, the money was not received by the clerk during term time, or under such circumstances as to admit of an inference that the payment was made under the court's direction; but the clerk received the money in vacation, and without the sanction of the court, either expressed or implied. At common law, payment to the clerk in vacation during the pendency of an action, before judgment and without an order of court, of the amount due plaintiff, was not authorized, and no statutory enactment in this state can be found which empowers a clerk of the district court to receive money under the circumstances disclosed by this record. The law did not constitute the clerk as the agent of this plaintiff to receive the amount of its mortgage. After judgment, a clerk of court may receive payment, even in the absence of any express statute upon the subject. McDonald v. Atkins, 13 Neb. 568 (14 N. W. Rep. 532); Moore v. Boyer, 52 Neb. 446 (72 N. W. Rep. 586). The authority of a clerk of a court to receive payment of a judgment in his office existed at common law, and has been recognized by long usage. The official power of the clerk is circumscribed by the extent of his duties, and he ceases to act by virtue of his office whenever he steps beyond the boundary of his power. It was no part of the official duty of the clerk to receive the money from these mortgagors. He did not act officially, but in his individual capacity as the mere agent of those who intrusted him with the money. Durant v. Gabby, 2 Metc. (Ky.) 91; Baker v. Hunt, 1 Wend. (N. Y.) 103; Currie v. Thomas, 8 Port. (Ala.) 293; Windham v. Coats, 8 Ala. 285; Ball v. Bank, 8 Ala. 590 (42 Am. Dec. 649); Governor v. Read, 38 Ala. 253; Alexandrie v. Saloy, 14 La. Ann. 326; Hammer v. Kaufman, 39 Ill. 87."

Sec. 602. Authority to receive payment-Agents. A provision in a mortgage that if the mortgagor shall pay the mortgagee, "his heirs, assigns or legal representatives, the principal sum," etc., "then this mortgage shall be null and

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void," does not constitute the mortgagee the agent of the endorsee of the note secured, to receive payment after such endorsement. Herbage v. Moodie, 51 Neb. 837 (71 N. W. Rep. 778). The mere fact that a mortgagee has been in the habit of collecting interest from the mortgagor and remitting it to an assignee of the mortgage is not alone sufficient to authorize the conclusion that the mortgagee's agency was such as to authorize him to collect the entire unmatured mortgage debt. Porter v. Ourada, 51 Neb. 510 (71 N. W. Rep. 52); Herbage v. Moodie, 51 Neb. 837 (71 N. W. Rep. 778). Where a mortgagee, retaining in his own possession the mortgage papers, forwards from time to time the coupon interest notes to a third party for collection, it does not authorize the payment by the mortgagor or his grantee of the premises of the principal sum to such person as agent of the mortgagee, he not having the note and mortgage in his possession. Trull v. Hammond, 71 Minn. 172 (73 N. W. Rep. 642). Particular evidence held sufficient to show one's authority to receive payment as agent of the mortgagee. Thornton v. Lawther, 169 Ill. 228 (48 N. E. Rep. 412); Kimball v. Zimmerman, 51 Neb. 861 (71 N. W. Rep. 786). Particular evidence held insufficient to show one's authority to receive payment of a mortgage debt, as agent. City Missionary Soc. v. Reams, 51 Neb. 225 (70 N. W. Rep. 972); Terry v. Durand Land Co., 112 Mich. 665 (71 N. W. Rep. 525); Herbage v. Moodie, 51 Neb. 837 (71 N. W. Rep. 778); Frey v. Curtis, 52 Neb. 406 (72 N. W. Rep. 478); Church Ass'n of Mich. v. Walton, 114 Mich. 677 (72 N. W. Rep. 998); Trull v. Hammond, 71 Minn. 172 (73 N. W. Rep. 642); Herrick v. Mosher, 71 Minn. 270 (78 N. W. Rep. 964).

Sec. 603. Payment to agent-Authority to receive things other than money. Where a loan company, authorized as an agent of the mortgagee, to receive payment of the mortgage, negotiated a new loan to the debtor, by which it took his note and mortgage for a larger sum than the original mortgage debt, due in five years, paying him the difference in money, and crediting the mortgagee's account with the balance, and before settlement with such mortgagee passed into insolvency, it is held that the transaction did not amount to a payment of the original

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mortgage debt. Moore v. Pollock, 50 Neb. 900 (70 N.W. Rep. 541). The court say; "It may, we think, be fairly assumed from the foregoing statement, that the relation between the plaintiff and the Nebraska Company was that of principal and agent with respect to the interest coupons. It may also be conceded for the purpose of the present inquiry, that said company was, when the principal debt matured, authorized to receive payment thereof in behalf of the plaintiff in the usual course of business, even in the absence of the evidence of such indebtedBut does it follow therefrom that said company could bind the plaintiff by accepting, in satisfaction of the said claim, a note and mortgage payable to its own order five years thereafter, and which would require the advancement by him or his cestui que trust of 50 per cent. of the face value of his security? To that question the books furnish a ready answer, in the proposition that an agent employed to make collection of commercial paper is not, as the result of such relation alone, authorized to receive in payment thereof anything but money, which, however, as said in State v. Hill, 47 Neb. 456 (66 N. W. Rep. 541), includes not only legal tender, coin, and currency, but any other circulating medium, instruments, or tokens in general use in the commercial world as the representative of value. A reference in this connection to a few of the many cases in point will serve to illustrate the foregoing proposition. Scott v. Gilkey, 153 Ill. 168 (39 N. E. Rep. 265), was a case in which a bank holding notes for collection accepted therefor other notes of the maker, payable to its own order at a future date, and surrendered the first-mentioned notes, marked "Paid." At the same time it credited the payee's account with the amount of his notes, although no money passed in the transaction. It was held not to amount to a payment, and the payee was permitted to recover. In the recent English case of Hine v. Insurance Syndicate, 11 Reports 777, it was held that an agent authorized to demand. payment on behalf of his principal can receive money only, and payment by means of a bill of exchange drawn by the agent, and accepted by a debtor of the principal, payable three months after date, was held not within the authority of the former, and not binding upon the principal, although said bill was immediately discounted and honored at maturity. Ward

v. Smith, 7 Wall. 447, was a case in which a bank holding for collection certain securities, payable at its office, accepted, in satisfaction thereof, depreciated bank notes; but the court, referring to the foregoing facts when relied upon as a defense to an action on such securities, said: That the power of a collecting agent by the general law is limited to the receiving, for the debt of his principal, that which the law declares to be a legal tender, or which is by common consent considered and treated as money, and passes as such at par, is established by all the authorities.' See also, Bank v. See also, Bank v. Goodman, 109 Pa. St. 422 (2 Atl. Rep. 687; 58 Am. Rep. 728); Lockenmeyer v. Fogarty, 112 Ill. 572; Graydon v. Patterson, 13 Ia. 256 (81 Am. Dec. 432); Aultman v. Lee, 43 Ia. 404; Scully v. Dodge, 40 Kan. 395 (19 Pac. Rep. 807); Robinson v. Anderson, 106 Ind. 152 (6 N. E. Rep. 12); Mechem, Ag., § 375, and cases cited."

Sec. 604. Release of mortgage. Although a statute (Cal. Civ. Code, § 2938) does not specially provide for the partial release of a mortgage, such a release may be made in the same manner as a release in full. Woodward v. Brown, 119 Cal. 283 (51 Pac. Rep. 2; 63 Am. St. Rep, 108). See opinion for particular partial release held sufficient. Under Kan. Gen. Stat. 1889, par. 3889, an assignee of a duly recorded mortgage is authorized to discharge the same by an entry on the margin of the record acknowledging satisfaction of the mortgage, signed by himself in the presence of the register of deeds or his deputy who shall subscribe the same as a witness. Mutual Benefit Life Ins. Co. v. Huntington, 57 Kan. 744 (48 Pac. Rep. 19). A quitclaim deed of a portion of the mortgaged premises executed by a mortgagee to his mortgagor's conditional vendee of such portion for the purpose of effecting a release of the mortgage as to such vendee and which does not purport to be to him and his assigns, does not release the lien of the mortgage as to the mortgagor, where the title reverts to him on account of his vendee not complying with the conditions of his purchase, nor as to one purchasing the property of the mortgagor after such reversion. Emert v. Williams, Tenn. (42 S. W. Rep. 491). As bearing upon this subject the court cites, Wyman v. Hooper, 2 Gray

141; Grover v. Thatcher, 4 Gray 526; Pierce v. Kneeland, 16 Wis. 672 (84 Am. Dec. 726-728). Mass. Stat. 1882, ch. 237, construed and applied-petition for release of mortgage not recognized for twenty years. Brintnall v. Graves, 168 Mass. 384 (47 N. E. Rep. 119). For construction of particular release of mortgage, see Wood v. Brown, 104 Ia. 124 (73 N. W. Rep. 608).

Sec. 605. Release of portions of mortgaged premises upon partial payments. A covenant in a mortgage to release a certain amount of the premises upon payment of a specified sum at any one time, runs with the land, and the benefit of such a covenant may be claimed on account of a payment made after proceedings to foreclose the mortgage have been commenced. Gammel v. Goode, 103 Ia. 301 (72 N. W. Rep. 531). Where a portion of land embraced in a purchase money mortgage is released from the operation of the mortgage by the mortgagee in accordance with a stipulation contained in the mortgage, upon part payment being made, such portion is released from all liability for the purchase price. Neale v. Dempster, 179 Pa. St. 569 (36 Atl. Rep. 338). A clause in a mortgage that a mortgagee shall, "from time to time, and as often as request was made to her or them for that purpose, release from the lien and operation of the said accompanying indenture of mortgage, for each ninety dollars of principal paid, a lot of land to be selected by the said party obligor, its successors and assigns, containing two thousand square feet of land," does not oblige the mortgagee to accept a payment of less than $90.00 or to release a fractional part of two thousand square feet, or to release lots of an area less or more than two thousand square feet each, at a rate of $90.00 each. Hall v. Home Bldg. Co., N. J. Eq. (37 Atl. Rep. 1019).

Sec. 606. Release of portion of several lotsRights and liabilities of mortgagee. Where several lots embraced in a mortgage are conveyed to different purchasers, the mortgagee cannot release from his mortgage a portion of the lots in such a manner as to charge against the others more than their appropriate share of the mortgage indebtedness;

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