As a result of the modern tendency of courts to regard a mortgage as a lien rather than a conveyance of the land, it is in many cases held to be merely a chattel interest that may be transferred by parol ; Dougher ty v. Randall, 3 Mich. 581; Rigney v. Lovejoy, 13 N. H. 247 ; Kamena v. Huelbig, 23 N. J. Eq. 78 ; Sims v. Hammond, 33 la. 368 ; and the assignee may foreclose in equity ; Pease v. Warren, 29 Mich. 9, 18 Am. Rep. 58.
A transfer by mere delivery of the papers has been held valid; Daly v. R. Co., 55 N. J. Eq. 595, 38 Ad. 202, affirmed 57 N. J. Eq. 347, 45 Atl. 1092 ; John H. Mahnken Co. v. Pelletreau, 93 App. Div. 420, 87 N. Y. Supp. 737 ; McMillan v. Craft, 135 Ala. 148, 33 South. 26 ; Cutler v. Haven, 8 Pick. (Mass.) 490 ; but there must be an intention to trans fer accompanying the delivery, and if the in tention is to have a written assignment the manual delivery does not pass title ; Strause v. Josephthal, 77 N. Y. 622. The transfer by delivery merely creates an equity, but does not at law transfer either the mortgage debt or an interest in the property ; Dacus v. Streety, 59 Ala. 183 ; and while good be tween the parties, as to third persons it takes effect, either in law or in equity, only from the time it is duly recorded; Fosdick v. Barr, 3 Ohio St. 471.
The transfer of the note secured by the mortgage, by delivery merely, operates as an equitable transfer of the mortgage; O'Neal v. Seixas, 85 Ala. 80, 4 South. 745 ; and the transfer of the debt carries with it the security without assignment or delivery thereof ; Stimpson v. Bishop, 82 Va. 190 ; Jenkins v. Wilkinson, 113 N. C. 532, 18 S. E. 696 ; but the assignee of an overdue note and mortgage takes them subject to all equities which could be enforced against the as signor ; Owen v. Evans, 134 N. Y. 514, 31 N. E. 999.
A specific request or devise of a mortgage and deed or of the "real estate of which 1 now hold a mortgage" is sufficient to pass the interest of the testator ; Clark v. Clark, 56 N. H. 105 ; Proctor v. Robinson, 35 Mich. 284 ; and where the executor was also resid uary legatee, and there was no specific be quest of the mortgage, the executor took the property as executor, and not by assignment, and could foreclose the mortgage ; Hayes v. Frey, '54 Wis. 503, 11 N. W. 693.
Assumption of Mortgage by Grantee. The question whether the acceptance by a gran tee of a deed subject to a specified mortgage as part of the consideration, in the absence of an express promise to pay it implies such a promise on his part, has been the subject of conflicting decisions. But the more gen
erally accepted view is, that the clause "un der and subject" in a deed or conveyance, is a covenant of indemnity only as between grantor and grantee for the protection of the former ; Moore's Appeal, 88 Pa. 450, 32 Am. Rep. 469 ; Freeman v. R. Co., 173 Pa. 275, 33 Atl. 1034 ; (but see Blood v. Crew Le Vick Co., 171 328, 33 Atl. 344); Hamill v. Gillespie, 48 N. Y. 556 ; Tichenor v. Dodd, 4 N. J. Eq. 454 ; Fiske v. Tolman, 124 Mass. 254, 26 Am. Rep. 659 ; Meech v. Ensign, 49 Conn. 191, 44 Am. Rep. 225 ; Morris v. Mix, 4 Kan. App. 654, 46 Pac. 58.
A different view has been held in New York, based in the later cases on the doc trine that when one makes a promise for the benefit of a third person, the latter may maintain an action upon it ; Burr v. Beers, 24 N. Y. 178, 80 Am. Dec. 327; Campbell v. Smith, 71 N. Y. 26, 27 Am. Rep. 5. But this doctrine is for the most part confined to New York ; see 26 Am. Rep. 660, n.; Union Mut. Life Ins. Co. V. hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118; Solicitors' Loan & Trust Co. v. Robins, 14 Wash. 507, 45 Pac. 39 ; 1 Jones, Mort. § 758. In Penn sylvania, by statute, a grantee does not as sume a liability for an incumbrance, unless by agreement in writing, and the words "nu clei: and subject" in his deed do not impose such liability.
As to the rights of a mortgagee holding more than one mortgage of the same mort gagor, see TACKING.
Where it is sought to give the lien of a junior mortgage precedence over the lien of a senior one, the claim must be based either on an agreement to that effect, or on the superior equity of the junior mortgage; Brown v. Baker, 22 Neb. 708, 36 N. W. 273. An agreement between mortgagor and mort gagee extending the time of payment of the mortgage debt, and providing for the com pounding of interest, cannot be enforced to the prejudice of junior lienholders whose liens were created prior to such agreement ; Johnson v. Finzer, 84 Ky. 411, 1 S. W. 674. The vested priority of a mortgagee is beyond the power of the mortgagor or the legisla ture thereafter to disturb ; Toledo, D. & B.