and where he afterwards takes a conveyance of part of the lots he will be charged with their market value although that exceeds their ratable contributive share of the indebtedness existing at the time he took his conveyance. Brooks v. Benham, 70 Conn. 92 (38 Atl. Rep. 908; 66 Am. St. Rep. 87). The court say: "He who takes a mortgage of several parcels of land, which together are worth more than the amount of his debt, and are subsequently sold by the owner of the equity of redemption, at the same time, to different persons, owes a certain duty to each of these. He ought not to release his security as to any parcel in such a manner as to increase the burden on the rest. He has no right without the consent of all, to bargain with any of these purchasers for the release of his parcel on payment of less than its fair share of the whole debt. While the whole of the debt is secured by the whole of the land, each parcel of the land, as between the different proprietors, is equitably subject only to so much of the debt as corresponds to the proportion between its value and the value of all the land; and, if its owner should be compelled to redeem the mortgage, he can resort to the others for a ratable contribution, and for that purpose is entitled to the benefit of subrogation to the mortgage title. To release any particular parcel from the mortgage incumbrance is to make, as respects that, any such subrogation impossible. The mortgagee therefore releases at his peril, if he had notice of the conveyances out of which the equities in question arise; and, if he does so without receiving from the releasee his proper contributory share of the debt, he is still equitably chargeable with the receipt of that share, in favor of the owners of the remaining parcels. Stevens v. Cooper, 1 Johns. Ch. 425 (7 Am. Dec. 499)."

Sec. 607. Release by mistake or without authority. A prior mortgagee, who was induced by the representations of the agent of a subsequent mortgagee to accept a quitclaim deed from the mortgagor and enter satisfaction of his mortgage without examining the records, is entitled to have his mortgage reinstated, as against such second mortgagee. Nommenson v. Angle, 17 Wash. 394 (49 Pac. Rep. 484). A release of a mortgage made and entered of record by mistake,

where the debt was not in fact paid, and where there was no purpose to release the mortgaged premises from the lien of the mortgage debt, may be set aside in equity, and the mortgage will be enforced as a security for the payment of the mortgage debt. A release of the mortgage so made is only prima facie evidence of its discharge, and the party asking relief may show that it was made by fraud, accident or mistake. Southern Kansas Farm L. & T. Co. v. Garrity, 57 Kan. 805 (48 Pac. Rep. 33). A mortgagee, who has assigned his mortgage, has no power to release or discharge it, and a release subsequently made by him will not affect the rights of the assignee. Mutual Benefit Life Ins. Co. v. Huntington, 57 Kan. 744 (48 Pac. Rep. 19). An entry of satisfaction made without authority by the holder of a trust deed after he has assigned the secured obligation, before maturity, to an innocent purchaser, will have the effect to give priority of lien to one who subsequently takes a trust deed on the premises to secure a bona fide loan, relying upon such entry of satisfaction; but the rule is otherwise where the second deed is made to secure advances made before such entry of satisfaction. Evans v. Roanoke Sav. Bank, 95 Va. 294 (28 S. E. Rep. 323). And such a release will not protect an innocent purchaser of the premises who inadvertently relied thereon. Demuth v. Old Town Bank, 85 Md. 315 (37 Atl. ́ Rep. 266; 60 Am. St. Rep. 322). Where a mortgagor, who had become administrator of his mortgagee's estate, released a part of the land embraced in his mortgage without payment of his debt, a subsequent mortgagee of the released land having knowledge of all the facts, cannot assert a prior right against the estate. Eastham v. Landon, 17 Wash. 48 (48 Pac. Rep. 739). Particular case in which a junior mortgagee is charged with notice of his agent's unauthorized satisfaction of a prior mortgage after he had assigned it to another. Parker v. Randolph, 10 S. Dak. 402 (73 N. W. Rep. 906). The fraudulent release of a mortgage by the mortgagee after the indorsement, without recourse, of the bond and coupons thereby secured, in favor of a third party having notice of the rights of the holder, does not of itself render the former liable in an action ex contractu for the amount of such debt. Smith v. Long, 50 Neb. 749 (70 N. W. Rep. 401). See

Evans v. Roanoke Sav. Bank, 95 Va. 294 (28 S. E. Rep. 323). Where a trustee in a trust deed, given to secure a debt, who has authority to enter satisfaction upon the debt being paid, enters of record a satisfaction of the deed after the debt has matured but before its payment, such an entry of satisfaction will protect a subsequent bona fide purchaser of the property relying upon it. Day v. Brenton, 102 Ia. 482 (71 N. W. Rep. 538; 63 Am. St. Rep. 460). Particular evidence held sufficient to show that the president of a corporation had authority to execute discharges of mortgages made to it. Swasey v. Emerson, 168 Mass. 118 (46 N. E. Rep. 426; 60 Am. St. Rep. 368); Smith v. Wells Mfg. Co.. 148 Ind. 333 (46 N. E. Rep. 1000).

Sec. 608. Forged satisfaction of mortgage-Title of purchaser relying on. The rights of a mortgagee, who merely handed the mortgage to the mortgagor at his request, and for the purpose of inspection only, are in no way affected by the latter's secretly and fraudulently substituting in its place a copy thereof, abstracting the original, and forging upon it an entry of satisfaction, by means of which he procured the record of the mortgage to be cancelled; it not appearing that the mortgagee, other than as above stated, reposed any trust or confidence in the mortgagor, or delegated to him the performance of any duty with respect to the mortgage, or had any reason to suspect the fraudulent design, or was negligent in not detecting the fraud at the time of its perpetration or thereafter. In such case, even a bona fide purchaser of the mortgaged premises though he bought in the honest belief that the mortgage had been actually satisfied, took, nevertheless, subject to its lien. Luther v. Clay, 100 Ga. 236 (28 S. E. Rep. 46; 39 L. R. A. 95). The court say: "The contest was between a mortgagee, who was the victim of the theft of the mortgage and a forged cancellation of the same, entered upon the record, and the purchaser, who bought in good faith, believing that the cancellation as it appeared of record was genuine, and authorized. That title to property cannot be taken away by theft is a principle well settled. The seller can convey no greater title than he himself possesses. Civ. Code, § 3538, 2 Schouler, Pers. Prop.

(3d Ed.), § 19. It is equally well settled that an owner of property will not be deprived of his right to the same by the commission of a forgery, and this is true even where the claimant under the forged instrument had no notice of the forgery, and honestly believed that it was honest and genuine. Sampeyreac v. U. S., 7 Pet, 222-240; Van Amringe v. Morton, 4 Whart. 382; D' Wolf v. Haydn, 24 Ill. 525; Arrison v. Harmstad, 2 Pa. St. 191; Wallace v. Harmstad, 44 Pa. St. 492; Gray v. Jones, 14 Fed. Rep. 83; Reck v. Clapp, 98 Pa. St. 581-586; Telegraph Co. v. Davenport, 97 U. S. 372."

Sec. 609. Record entry of satisfaction-Statutes amended and new statutes. Ala Code (1696),§§ 1065, 1066— entry of partial payment or full payment upon record of mortgage or deed of trust-amended, Laws 1898-99, p. 26. Arizona has a penal statute requiring the entry of record of the satisfaction of release of a mortgage or deed of trust, upon full payment thereof. Laws 1899, p. 73. Me. Rev. Stat., ch. 90, § 28-entry of satisfaction by mortgagee upon payment of mortgage-fine for failure to do so-amended, Laws 1899, p. 118. Minn. Gen. Stat. 1894, § 4196-entry of satisfaction of mortgage upon record-amended, Laws 1899, p. 191. N. Dak. Rev. Codes, § 4718, relating to the discharge of recorded mortgages by entry on the margin of the record thereof is repealed. Laws 1899, p. 93. Va. Code, § 2498-entry of record of satisfaction of mortgage-amended, Laws 1897-98, pp. 594, 935.

Sec. 610. Penalty for failure to enter satisfactionStatutes construed. Where a husband and wife who join in the execution of a mortgage jointly, sue to recover the statutory penalty for an alleged failure on the part of the mortgagee to enter satisfaction of the mortgage on the record, he will not be allowed to dispute the interest of both in the satisfaction of the mortgage and their statutory right to sue for the penalty by showing that the mortgaged property was owned by the wife alone. In such action the burden of proof is on the plaintiff, and when he introduces the entries and credits made on the record he should explicitly show that no entry of satisfaction has been made. Thomason Grocery Co. v. Mitchell, 114 Ala. 315 (21 So. Rep. 461). Va. Code, § 2498, applied

-summary remedy for having mortgages satisfied. v. Mann, 94 Va. 182 (26 S. E. Rep. 510).

Strict foreclosure.

Turnbull

Where, after the execu

Sec. 611. tion of a mortgage, the mortgagor conveys a portion of the premises to a city which devotes them to highway purposes, and subsequently the mortgagee has a decree of foreclosure and sale without making the city a party, he is not entitled, in a second action of foreclosure brought against the city, to a strict foreclosure without sale, barring the city of all right in the premises, unless it redeems the entire tract by paying the whole amount due on the mortgage. Morey v. City of Duluth, 69 Minn. 5 (71 N. W. Rep. 694).

Sec. 612. When foreclosure proceedings may be commenced. Where a mortgagee takes a note for a given amount and executes an agreement to advance money to his mortgagor to that amount, he cannot maintain an action to foreclose his mortgage until he has advanced the full amount of the loan. Savings Bank v. Asbury, 117 Cal. 96 (48 Pac. Rep. 1081). In the absence of any provision in a mortgage entitling the mortgagee to a foreclosure thereof, prior to the time the debt falls due which is secured thereby, a court of equity cannot decree foreclosure until the time limited for the payment of such debt has expired. Kirk v. VanPetten, 38 Fla. 335 (21 So. Rep. 286). A covenant in a mortgage executed in settlement of bastardy proceedings, the parties to which unite in marriage, which binds the husband to support and kindly treat" his wife, is broken so that the mortgage may be foreclosed where the conduct of the husdand is such as to drive his wife from home. Porter v. Caylor, 146 Ind. 448 (45 N. E. Rep. 648). Where a mortgage provides that upon the mortgagor making certain default the mortgagee may declare the entire debt due and “ may proceed and collect the same, and by foreclosure of the mortgage given to secure the same, either under a power of sale therein contained, or by suit or other proceedings in court, or otherwise as they may elect," it is held that the right to have the foreclosure of a mortgage is not barred by the fact that the mortgagee has procured a judgment at law for the debt which has

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