brought without leave of court, to recover a deficiency arising on a foreclosure sale, against the executor of a grantee of a portion of the mortgaged premises, who has covenanted to pay a portion of the mortgage, is not maintainable: Scofield v. Doscher, 72 N. Y. 491. Compare Comstock v. Drohan, 71 N. Y. 9. It seems that, if a mortgagee has voluntarily refrained from asking a decree for any deficiency, some satisfactory reason should be assigned for permitting him to institute a separate action at law for its recovery: Equitable Life Ins. Soc. v. Stevens, 63 N. Y. 341, 345.

Another thing to be observed, and which may deprive a mortgagee of his double remedy, is the form of the mortgage. If the mortgage itself contains an express covenant for the payment of a sum of money, the mortgagor thereby becomes liable to a personal action for the debt; but an ordinary mortgage or deed of trust which contains no covenant for the payment of a debt is not evidence of indebtedness; and, where there is no personal obligation and no personal covenant in the mortgage, the only remedy is against the property mortgaged: Elder v. Rouse, 15 Wend. 218; Scott v. Fields, 7 Watts, 360; Fidelity etc. Trust Co. v. Miller, 89 Pa. St. 26; Baum v. Tonkin, 110 Pa. St. 569, 573; Coleman v. Van Renssalaer, 44 How. Pr. 368; Gaylord v. Knapp, 15 Hun, 87; Spencer v. Spencer, 95 N. Y. 353; Weil v. Churchman, 52 Iowa, 253; Von Campe v. Chicago, 140 Ill. 361. Thus an action of debt cannot be maintained upon a chattel mortgage to recover a sum of money secured thereby, unless the instrument contains an express agreement to pay the sum, or a distinct acknowledgment of an existing debt: Culver v. Sisson, 3 N. Y. 264; Weed v. Covill, 14 Barb. 242. An admission of indebtedness in a mortgage, on the part of the mortgagor, raises an implied promise, and creates a personal liability, but the promise must be express and unequivocal: Coleman v. Van Renssalaer, 44 How. Pr. 368. If a debt is not evidenced by a note, but the mortgage contains a recital that the mortgagor is "justly indebted" in a certain sum, and a covenant that he will pay the deficiency, if, from any cause, the property fails to satisfy the debt, the instrument amounts to an acknowledgment of indebtedness and a promise to pay, and the mortgagee may maintain an action upon the debt without first foreclosing the mortgage: Newbury v. Rutter, 38 Iowa, 179. A mortgagee may, also, in an action of debt, recover against a mortgagor upon proof of his parol agreement to pay the mortgage debt: Tonkin v. Baum, 114 Pa. St. 414.

Other circumstances than the form of the mortgage may also exclude a personal remedy against a mortgagor. Thus, a mortgagee will lose his right to sue the mortgagor for the debt by so dealing with the mortgaged property as to put it out of his power to restore It upon a tender of full payment. For example, if a mortgagee concurs with the transferee of the equity of redemption in selling the property, and he allows such transferee to receive the purchase money, the mortgagee cannot afterward sue the mortgagor for the debt: Palmer v. Hendrie, 27 Beav. 349; 28 Beav. 341. So, if an

owner of land, having mortgaged it, subsequently sells the equity of redemption by a deed stipulating that the grantee shall assume and pay the mortgage, and takes back a second mortgage to himself reciting this stipulation, the assignee of the second mortgage, though he has also taken an assignment of the first mortgage, will not be allowed to sue on the first mortgage note. He is precluded from resorting to the personal liability of the mortgagor by reason of the equity or agreement between the parties, of which he had knowledge: Sweet v. Sherman, 109 Mass. 231. It is, of course, competent for a creditor who holds a mortgage or other security for a subsisting debt to absolve the debtor from personal obligation, and agree to have recourse to the security alone for payment: Ball v. Wyeth, 99 Mass. 338; Kennion v. Kelsey, 10 Iowa, 443; and, in some of the states, the mortgagee is, by statute, required first to exhaust his remedy against the mortgaged property before he will be allowed to pursue a personal liability on the part of the mortgagor. The security must first be exhausted if it has any value: Bartlett v. Cottle, 63 Cal. 366; Johnson v. Lewis, 13 Minn. 364; Hyman v. Kelly, 1 Nev. 179, 186; Weil v. Howard, 4 Nev. 384. A creditor whose debt is secured by mortgage may either commence and prosecute to judgment an action at law to recover his debt, or enforce its payment by means of foreclosure; but, having elected his remedy, he must exhaust the remedy so chosen before resorting to the other: Meehan v. First Nat. Bank, 44 Neb. 213; Maxwell v. Home Fire Ins. Co., 57 Neb. 207. In Iowa, a mortgagee is not confined to one remedy, but, if separate actions are commenced upon a covenant for the payment of money and for the foreclosure of the mortgage, the plaintiff may elect which he will pursue, and his election of the one remedy will have the effect of continuing the other: Brown v. Cascaden, 43 Iowa, 103. A sale of mortgaged real estate on execution upon a personal judgment taken upon the mortgage debt is void in Indiana: Boone v. Armstrong, 87 Ind. 168. A personal judgment cannot be rendered against the wife of a mortgagor, in the absence of an allegation that the debt is one for which her separate estate is answerable: McGlaughlin v. O'Rourke, 12 Iowa, 459. If a mortgage is made to secure another's debt, and no personal liability is imposed upon the mortgagor, by the terms of the instrument, or otherwise, the mortgagor is not personally answerable for the debt, and no general execution can issue against him: Chittenden v. Gossage, 18 Iowa, 157. A decree of foreclosure before sale is no bar to a suit upon the mortgage debt while the decree is under the control of the court rendering it, as it or the sale under it may be set aside. An action so commenced may, of course, be defeated by the subsequent sale of the property and satisfaction of the debt from the proceeds; but, until that occurs, the debt stands, and, if there is no sale, or the sale is set aside, the action may be prosecuted to judgment. There is no absolute satisfaction until the sale is consummated, but, when the sale is complete, it relates back to the day of sale, and

defeats any proceedings then pending upon the debt: Morgan v. Sherwood, 53 Ill. 171.

As the holder of a mortgage is entitled to recover the full amount of the mortgage debt, he may maintain an action on the debt for what remains due, where there is a deficiency after foreclosure of the mortgage, either by suit or under a power of sale: Marston v. Marston, 45 Me. 412; Stevens v. Dufour, 1 Blackf. 386; Watson v. Hawkins, 60 Mo. 550; Wing v. Hayford, 124 Mass. 249; Porter v. Pillsbury, 36 Me. 278; Lansing v. Goelet, 9 Cow. 346; Globe Ins. Co. v. Lansing, 5 Cow. 380, 15 Am. Dec. 474; Omaly v. Swan, 3 Mason, 474. The foreclosure is a payment of the debt to the amount received from the sale, or to the value of the property in case of a foreclosure without sale: Duval v. McLoskey, 1 Ala. 708; Hunt v. Stiles, 10 N. H. 466; Bassett v. Mason, 18 Conn. 131. But, in some of the states, prior permission to bring an action of debt for a deficiency must be obtained of the court in which the foreclosure proceeding is had: Equitable Life Ins. Soc. v. Stevens, 63 N. Y. 341; Comstock v. Drohan, 71 N. Y. 9; Scofield v. Doscher, 72 N. Y. 491. If, however, a foreclosure is had in one state, where leave of court to sue at law is required, and a personal judgment is sought against the defendant in another state, such prior permission of the former state court is not a prerequisite to the maintenance of an action against a resident of the latter state for an unpaid balance of the mortgage debt: Williams v. Follett, 17 Colo. 51. A judgment at law for a deficiency does not open the foreclosure sale and authorize the debtor to redeem the property: Weld v. Rees, 48 Ill. 429.

A personal judgment against a mortgagor for a deficiency, after a foreclosure sale, cannot be rendered before the deficiency becomes due according to the contract: Danforth v. Coleman, 23 Wis. 528. A note not due when a mortgage, by which it is secured, is foreclosed is not merged in the decree, and the decree is not a bar to a personal action on the note, brought against the mortgagor. If mortgaged premises are all sold to satisfy a first installment due upon the mortgage, the court cannot enter up a personal judgment against the mortgagor, for a subsequent installment when it becomes due; and a decree of foreclosure of a mortgage, of which one installment only is due, containing a clause allowing the plaintiff to apply for a further order of sale upon a subsequent installment falling due, and for an execution for any deficiency that might remain, where the entire premises were sold and did not bring enough to pay the first installment for which the decree was rendered, is not a bar to a personal action against the mortgagor for a subsequent installment when it becomes due: Bliss v. Weil, 14 Wis. 35, 80 Am. Dec. 766. In those jurisdictions where the mortgagee, In a foreclosure suit, is entitled to a personal judgment for a deficiency remaining after a sale of the property, an action at law on the debt should not be allowed concurrently with an equitable

suit to foreclose by sale and for judgment for deficiency: Anderson v. Pilgram, 30 S. C. 499, 14 Am. St. Rep. 917.

Trust Deeds.—A creditor whose debt is secured by a trust deed has two remedies, one in personam for his debt, the other in rem, to subject the property to its payment: Silvey v. Axley, 118 N. C. 959, 962; Watson v. Hawkins, 60 Mo. 550, 553; Gregory v. Marks, 8 Biss. 44; Stephens v. Greene County Iron Co., 11 Heisk. 71; Weld v. Rees, 48 Ill. 428; Mallory v. Kessler, 18 Utah, 11, 72 Am. St. Rep. 765. If the creditor first resorts to a sale of the property conveyed, and, after regular proceedings, finds that the amount realized therefrom is insufficient to pay the debt, this does not prevent him from proceeding in an ordinary action at law to obtain a personal judgment for the deficiency: Mallory v. Kessler, 18 Utah, 11, 72 Am. St. Rep. 765; Watson v. Hawkins, 60 Mo. 550, 553; Gregory v. Marks, 8 Biss. 44; Weld v. Rees, 48 Ill. 428; and a statute providing that but one action can be maintained to recover a debt secured by mortgage does not bar an action to recover a balance due after a sale under a trust deed, and which remains unsecured: Mallory v. Kessler, 18 Utah, 11, 72 Am. St. Rep. 765. If a trust deed provides that the whole debt evidenced by a note shall become due upon default in the payment of any installment of principal or interest, an action at law may be maintained for the balance due upon the note after foreclosure of the deed, though the note, by its terms, is not due: Gregory v. Marks, 8 Biss. 44. A judgment at law for a deficiency, after a sale of property conveyed by a deed of trust, does not open the sale and authorize the debtor to redeem the trust property: Weld v. Rees, 48 Ill. 428. A creditor, secured by a deed of trust, may sue on his debt, and, if he fails to collect it upon execution, he may file a bill to enforce the deed of trust lien: Stephens v. Greene County Iron Co., 11 Heisk. 71.

Pledge and Collateral Security.—If property is pledged to secure a debt, the pledgee may maintain an action for the debt without first exhausting the subject of the pledge: Ehrlich v. Ewald, 66 Cal. 97; but the pledgee's lien is lost the moment that he parts with possession, or claims the right to detain the property upon a different ground. Hence, if he causes it to be attached as the property of the pledgor, he cannot afterward claim the property under a pledge antedating the attachment: Citizens' Bank v. Dows, 68 Iowa, 460. When the pledgee sues for the debt for which the pledge was made, the defendant may set up a wrongful conversion of the pledge by way of a defense and be allowed the value of the pledge as payment of the debt pro tanto: Donnell v. Wyckoff, 49 N. J. L. 48. But a creditor who holds a promissory note belonging to his debtor as collateral security for his debtor's note cannot be compelled to exhaust the collateral security held by him as a condition precedent to sue his debtor upon the latter's note: Carson v. Buckstaff, 57 Neb. 262; and, if a person executes a promissory note and transfers to the payee, as collateral security thereto, a note then held against a third person, secured by a mortgage on real estate, a decree

foreclosing the mortgage does not bar an action at law on the note not secured by the mortgage: Maxwell v. Home Fire Ins. Co., 57 Neb. 207.

The taking of collateral security does not bar a suit on the debt secured: Dugan v. Sprague, 2 Ind. 600; Mills v. Gould, 14 Ind. 278; though the creditor covenants or promises not to sue the debtor until the securities are given up, and he brings suit before they are given up: Foster v. Purdy, 5 Met. 442. A creditor has a right to enforce either one of two securities, as may be most to his advantage: Morris v. Fales, 43 Hun, 393. If he has several securities for the same cause of action, he can pursue them all to judgment at the same time, though he is entitled to but one satisfaction: Stillwell v. Bertrand, 22 Ark. 379; Houser v. Houser, 43 Ga. 415. A defendant is answerable for his debt though the security given for its payment is void: Little v. Fowler, 1 Root, 94. Where collaterals have never been in the possession or control of the creditor, but have been placed by the debtor in the hands of a third person appointed by himself, the creditor may recover on the principal security, though the collaterals are not accounted for: Bank of United States v. Peabody, 20 Pa. St. 454.

Vendor and Purchaser.-A vendor of land may sue at law upon the note given for the purchase money, and, at the same time, proceed in equity to enforce a lien reserved in his deed for the payment of the debt. The taking of a judgment at law does not abrogate or defeat a vendor's lien to secure the debt, and a vendor is entitled to a decree for the sale of land on which he has a vendor's lien, although he may also have a judgment at law for the amount. The taking of a personal judgment does not waive a vendor's lien: Palmer v. Harris, 100 Ill. 276; Zwingle v. Wilkinson, 94 Tenn. 246; Kane v. Mann, 93 Va. 239, 248; Howard v. Herman, 9 Tex. Civ. App. 79; Micou v. Ashurst, 55 Ala. 607; Waldrom v. Zacharie, 54 Tex. 503; Ellis v. Hussey, 66 N. C. 501. It is said that a vendor, like a mortgagee, after default, has three remedies-to proceed in equity to enforce the lien given him by law for the payment of the purchase money, to sue in ejectment to recover possession of the land, or to sue at law for the recovery of the purchase money-that he may pursue these remedies concurrently; and that a court of equity, in the absence of some evidence of fraud or oppression, or of some fact rendering it inequitable, will not restrain him from pursuing them all at the same time: Micou v. Ashurst, 55 Ala. 607, 615; Ellis v. Hussey, 66 N. C. 501.

A vendor of land, having an equitable lien thereon for purchase money, may seek his legal remedy upon his money demand, together with the enforcement of his lien in one action, under a statute which abolishes distinctions between actions at law and suits in equity; but he may first pursue his remedy upon his legal claim alone, without thereby waiving his right to afterward resort, if necessary, to the equitable enforcement of his lien: Kern v. Haz lerigg, 11 Ind. 443, 71 Am. Dec. 360; Nutter v. Fouch, 86 Ind. 451;