of an assignment of the instrument of mortgage.3 As distinct from the secured obligation, a mortgage is not a subject of transfer.4

3 Without the Necessity of the Assignment of the Instrument of Mortgage.-A mortgage is the incident of the debt it secures, and the indorsement or assignment of a promissory note thereby secured carries with it the security without a formal transfer of the instrument of mortgage: Ord v. McKee, 5 Cal. 515; Phelan v. Olney, 6 Cal. 478, 483; Willis v. Farley, 24 Cal. 490, 497; Mack v. Wetzlar, 39 Cal. 247, 256; Storch v. McCain, 85 Cal. 304, 307, 24 Pac. 639; Burnett v. Lyford, 93 Cal. 114, 117, 28 Pac. 855; Adler v. Sargent, 109 Cal. 42, 49, 50, 41 Pac. 799; Savings etc. Soc. v. McKoon, 120 Cal. 177, 179, 52 Pac. 305.

The assignment by way of pledge of an obligation secured by a movable property mortgage has the same effect: Bank of Woodland v. Duncan, 117 Cal. 412, 415, 49 Pac. 414.

4 Apart from Secured Obligation, Mortgage Nontransferable.-The debt and the mortgage are inseparable. The latter must follow the former. As distinct from the debt the mortgage has no determinate value and is not a subject of transfer. An assignment of the mortgage without the secured obligation is a nullity: Nagle v. Macy, 9 Cal. 426, 428; Polhemus v. Trainer, 30 Cal. 685, 687, 688; Hyde v. Mangan, 88 Cal. 319, 327, 26 Pac. 180.

"A mortgage is a mere incident to the debt, and will not pass except by an assignment of the note, or debt': Ritter v. Stevenson, 7 Cal. 388.

The recorded transfer of a mortgage along with a forged note purporting to be secured thereby does not affect the rights of the assignee of the genuine note to secure which the mortgage was given, even when there was no delivery of the instrument of mortgage to the assignee: Adler v. Sargent, 109 Cal. 42, 41 Pac. 799.

363. Assignment When Principal Obligation not in Writing.

Where the obligation secured by mortgage is not evidenced by writing, the assignment of the instrument of mortgage assigns such obligation."

364. Assignment of Mortgage may be Recorded. The assignment of a mortgage may be recorded in like manner as a mortgage.6

365. Record of Assignment does not Invalidate Payment by Mortgagor of Evidence of Mortgage Indebtedness.

The record of the assignment of a mortgage executed as security for an obligation evidenced

5 Peters v. Jamestown Bridge Co., 5 Cal. 334, 63 Am. Dec. 134.

An assignment of a mortgage is not a grant of an estate of real property, and thus does not come within the provisions of section 1107 of the Civil Code as to recordation: Adler v. Sargent, 109 Cal. 42, 49, 41 Pac. 799.

The assignee of an instrument of mortgage after maturity is affected with all the equities against his assignor: Brown v. Witts, 57 Cal. 304.

But a purported deed of mortgaged property executed by the mortgagee cannot "operate as an assignment of the mortgage. The latter is a mere security for the debt; so it would seem that the two transactions are totally different in character; the intent of the one is to convey title to the land; of the other, to transfer a debt with its security": Peters v. Jamestown Bridge Co., 5 Cal. 334, 63 Am. Dec. 134; Mack v. Wetzlar, 39 Cal. 247, 256.

6 Compare Civil Code, section 2934, quoted at section 366, note 8, below.

by a promissory note, bond, or other instrument designated in the mortgage does not of itself conIstitute such notice to a mortgagor, his heirs or personal representatives, as to invalidate a payment made by any of them to the person holding such evidence of mortgage indebtedness."

366. Record Operates as Notice in Every Other Case.

Except as provided in the preceding section, the record of the assignment of a mortgage operates as notice to the mortgagor and everyone else.8

7 See Civil Code, section 2935, quoted under section 366, note 8, below.

So, where a mortgagor conveyed the mortgaged property to the mortgage holder, part of the consideration being the cancellation of the note secured by the mortgage, and the mortgage holder had actual possession of the secured note at the time of the transaction, the payment is not invalidated by the fact that such mortgage holder had previously assigned the mortgage obligation to a third party for value without notice (without a change of possession of the note), and that such assignment had been recorded: Rodgers v. Parker, 136 Cal. 313, 316, 68 Pac. 975.

8 Record Operates as Notice in Every Other Case. Civil Code, section 2934: "An assignment of a mortgage may be recorded in like manner as a mortgage, and such record operates as notice to all persons subsequently deriving title to the mortgage from the assignor.'"

Section 2935: "When the mortgage is executed as security for money due, or to become due, on a promissory note, bond, or other instrument, designated in the mortgage, the record of the assignment of the

mortgage is not, of itself, notice to a mortgagor, his heirs, or personal representatives, so as to invalidate any payment made by them, or either of them, to the person holding such note, bond, or other instrument."

In Rodgers v. Peckham, 120 Cal. 238, 242, 52 Pac. 483, the court says: "It will be observed that section 2934 does not declare that the record of the assignment of a mortgage will operate as notice only to persons subsequently deriving title to the mortgage from the assignor, while the language used in section 2935 clearly imports that such a record would operate as notice to a mortgagor, so as to invalidate any payment made by him to a person not holding the note or mortgage. And in such case, if a payment is so made, it must be treated as made at the risk of the party making it."

Illustrations.-A payment made by a transferee of a mortgagor to the original mortgagor after the recordation of the assignment of the principal obligation accompanied by the transfer of the notes evidencing it is of no effect: Woodward v. Brown, 119 Cal. 283, 302, 303, 63 Am. St. Rep. 108, 51 Pac. 2, 542.

The fact that the note secured by the mortgage was non-negotiable, and that the payment was made to the original mortgagee does not alter the rule either as to the mortgagor or a bona fide purchaser without notice of the mortgaged property, as the record concludes them both: Rodgers v. Peckham, 120 Cal. 238, 52 Pac. 483.

ARTICLE 6.

TRANSFER OF

MORTGAGED

IMMOVABLE

PROPERTY.

367. Mortgagor may transfer mortgaged immova ole property.

368. Purchaser who assumes mortgage obligation becomes principal obligor.

369. Purchaser of part of property who assumes part of mortgage obligation primarily chargeable pro tanto.

370. Such purchaser liable for expenses of foreclosure. 371. Such purchaser not liable for unsecured obligations.

372. Purchaser not presumed to assume liability. 573. Mortgage voidable between original parties valid as to purchaser.

367. Mortgagor may Transfer Mortgaged Immovable Property.1

A mortgagor may, at any time before his interest in mortgaged immovable property is extinguished or the period of redemption has expired, transfer his right thereto.2

1 on the effect of a transfer of mortgaged movable property, see section 378, below.

2 So he cannot, by injunction, be restrained from selling the property during the pendency of foreclosure proceedings: Breon v. Strelitz, 48 Cal. 645.

1