MISREPRESENTATIONS.
(See Representations.)
MORTGAGES.
Deed With Agreement to Reconvey}}.
1. Deed intended as security, with agreement to recovery on payment, creates trust in favor of grantor. Jasper v. Hazen, 75.
2. Deed with agreement to reconvey not always a mortgage. Effect of agreement depends on intention of parties. Devore v. Woodruff, 143.
Notic—Senior and Junior Incumbrances
.
A senior incumbrancer is not bound to respect the equitable right of a junior incumbrancer in the property unless he has notice, either actual or constructive, of such rights. The recording of the junior mortgage is not constructive notice to the prior mortgagee of the existence of such mortgage, or of the mortgagee’s equitable right thereunder to insist that the prior mortgagee shall not release from the lien of his mortgage any property upon which the subordinate incumbrancer has no lien, to his prejudice. Sarles v. McGee, 365.
Mortgages May Sue on Insurance Policy.
Mortgagee to whom loss is payable and whose interest exceeds amount of policy may sue on it alone. Travelers Ins. Co. v. Cal. Ins. Co., 151.
Forclosure.
1. Where a debt is secured by mortgage on several parcels of land and the court finds that the mortgagee is entitled to a sale thereof, it has no authority to except any part thereof from the decree of sale, though the value of the remainder is greater than the amount of the debt. Baker v. Marsh, 20.
2. To enable a party, claiming as assignee of mortgagee, to foreclose a mortgage upon real estate in this state by advertisement, the record must satisfactorily show the legal title to the mortgage to be in the assignee. Morris v. McKnight, 266.
3. Where a mortgage upon real estate was executed to “Beecher & Dean,” and subsequently one Charles R. Dean, assigned his interest in such mortgage to one Salmon I. Beecher, which assignment was duly recorded, and thereafter Salmon I. Beecher assigned said mortgage to George S. Barnes, which assignment was also duly recorded, and said Barnes assigned to Elizabeth McKnight, and which last assignment was also recorded, and said Elizabeth McKnight proceeded to foreclose by advertisement, held, that the record did not show that the legal title to said mortgage had ever passed from “Beecher & Dean,” and such foreclosure was void on the face of the record. Id.
Satisfaction—Reinstatement—Priority.
1. Mortgagee ina lost, and for that reason unrecorded, mortgage, having executed and recorded an instrument certifying that such mortgage had been paid and satisfied, cannot reinstate the prior lien of his mortgage as against an innocent assignee for value of a second mortgage, who buys relying upon the satisfaction as an extinguishment of the prior mortgage, although the mortgagees in the second mortgage knew of the unrecorded mortgage, and took their lien expressly subject to it. Morris v. Beecher, 130.
