STANDARD NO. 605

PROBLEM:

Should a mortgage discharge be considered effective by:

A. One of several mortgagees as individuals?

B. One of several administrators, executors or personal representatives where the examiner has no knowledge whether unanimity is required by the Will?

C. One of several trustees, where the examiner has no knowledge whether unanimity is required by the trust indenture?

RECOMMENDATIONI:

A. Yes, unless the record indicates the obligations are held by the mortgagees separately.

B. Yes.

C. Yes.

DISCUSSION:

A. A mortgage is effectively extinguished by either (1) payment of the debt or (2) discharge of the mortgage itself. Payment of the note may be governed by 11 M.R.S.A. §3-A et seq. (11 M.R.S.A. §3-116 was repealed and replaced October 13, 1993); but a mortgage discharge from one or more of several mortgagees is effective, unless the record indicates that the mortgage secures debts which are separately owned by the individual mortgagees. A discharge by one or more surviving joint tenants is also effective. See 33 M.R.S.A. §160.

B & C. In these situations the examiner should rely on the authority of the person executing the instrument. Even if a discharge by a co-executor, co-trustee or co-personal representative be invalid because of the lack of the majority or unanimity, as the case may be, the payment of the debt renders the mortgage dischargeable on proper showing.

First adopted August 25, 1960; amended June 19, 1975 December 7, 1983 and September 20, 2006. Formerly Title Standard No. 25.

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