Woodward

A petition for hearing in Bank having been granted, upon further consideration it appears that on January .20, 1892, McDonald conveyed to John Brown Colony, a corporation, and to D. S. Dorn blocks 51 and 60. On that day the title still remained in Brown. The Dorn deed was recorded January 23d, while'the John Brown Colony deed was recorded January 26th. On January 25, 1892, Brown conveyed these same blocks to McDonald, the title thus inuring to Dorn, who first recorded his deed. The presumption of law relating to blocks 51 and 60 was correctly applied in holding in the former opinion that the Dorn deed was‘first delivered. But it does not apply to the John Brown Colony deed as respects the other blocks and lots conveyed to that corporation. As to them, that deed must take date of January 20th, and therefore prior to the Dorn' deed, and the Dorn block could not be released without crediting their full value upon the mortgage debt, as the mortgagee had actual knowledge of the John Brown Colony deed. The value of these blocks was found to be $8,000. The mortgagee did in fact credit the mortgage debt with $5,000 on account of the sale to Dorn, so that there remains to be credited the…

I concur in the judgment and in the opinion of Commissioner Chipman, as modified, upon all points hut one. I dissent from the order striking out the deficiency judgment against Brown and from the reasoning upon which it is based. I agree to the general proposition that the mortgagee cannot release the mortgage in whole or in part without the consent of the mortgagor, and upon a full release hold the mortgagor to a personal liability, or upon a partial release claim a deficiency judgment greater than would have resulted if no part of the mortgaged property had been released. But when a mortgagor conveys the whole or a part of the mortgaged premises to a third party by a deed containing an express or implied warranty that the premises are free from encumbrances created or suffered by him, and the mortgagee releases to the grantee of the mortgagor, I think the consent of the mortgagor to the release should not only be presumed, but he should not be heard to allege that the release was without his consent.

The moment he makes such a conveyance his covenant is broken and he becomes bound to his grantee to have the mortgage released. If the mortgagee will consent to the release, he…