O.M. Corwin Co. v. Brainard Et Al‪.‬

Real Estate Mortgages ? Extension ? Effect on Subsequent Mortgage. Real Estate Mortgages ? Extension by Agreement of Parties ? Statute. 1. Section 8264, Revised Codes 1921, providing, inter alia, for the extension of a mortgage with the formalities required in the case of a grant of real property, contemplates the making of a contract assented to by both parties, and in order that notice of the extension may be given to subsequent purchasers and mortgagees, the instrument must be filed with the county clerk for record. Same ? Extension by Filing of Affidavit by Mortgagee ? Effect. 2. Section 8267, Revised Codes 1921, declaring the life of a mortgage on real property at an end at the close of eight years after maturity of the entire debt secured thereby, unless the mortgagee or his successors or assigns shall within sixty days after the expiration of the eight years file the affidavit of renewal therein described, contemplates action by the mortgagee alone, and after he shall have extended the life of his mortgage lien by taking the steps prescribed, he may foreclose the mortgage at his pleasure; as between him and the mortgagor, if the debt be kept alive, the mortgage is good even after the expiration of eight years from the maturity of the debt. Same ? Method of Extension by Affidavit Filed by Mortgagee not Exclusive. 3. Held, that the method prescribed by section 8267, supra, for extending the life of a real estate mortgage by the filing of an affidavit by the mortgagee is not exclusive, but that under section 8264 an extension may be effected by agreement between the parties to the mortgage by pursuing the formalities required in the case of a grant of real property. Same ? Effect of Extension by Agreement of Parties Before Rights of Third Parties Intervened, on Subsequent Mortgage. 4. Where by agreement between the parties to a real estate mortgage before maturity of the debt to secure which it had been given and before rights of third parties had intervened, the payment of the debt as well as the mortgage were extended for several years, under section 8264, above, the instrument being placed of record, a mortgage given on the property after filing of the extension agreement was inferior to the former. - Page 319