A. When a mortgage appears in the chain of title and it either states on its face, or it is otherwise obvious from a reading of the mortgage, that its purpose is to correct or modify a previous mortgage recording and both versions of the mortgage purport to secure the same indebtedness, a subsequently recorded discharge which references either recording is deemed to be a sufficient discharge of both mortgage recordings. If the context of the recording of the discharge suggests that a mortgage obligation is intended to continue, e.g., there is no refinance or sale contemporaneous with the discharge, then the discharge is effective only as to the mortgage described.
B. Where a Mortgage Modification Agreement has been recorded which makes reference to a previously recorded mortgage and purports to modify that mortgage in one or more particulars, a recorded discharge which makes reference to the original mortgage deed but not to any subsequent Modification(s) shall be deemed sufficient to discharge the mortgage as A recorded discharge which makes reference only to a modification agreement without making reference to the original mortgage shall also be deemed a sufficient discharge of the mortgage which was modified, absent affirmative evidence of record that the mortgagee did not intend to discharge the original mortgage.
Comment 1. There is a significant difference between a corrected mortgage that changes the original mortgage in a substantive aspect and one that is merely re-recorded to correct an error or omission. It is not uncommon for a title search to disclose a recorded mortgage which is then followed by another recorded mortgage which makes reference to the earlier mortgage and states that its purpose is to correct some error or omission in the first document, or it is otherwise obvious that such was the purpose of the re-recording of the mortgage. If this later recorded mortgage has been duly executed, attested and acknowledged, it may be a substitute mortgage for the earlier mortgage. If the discharge only references the original recorded mortgage, it may be that the intention of the releasor to clear the record of the original mortgage and to leave in force the substituted mortgage. This is essentially a question of fact which may not be clear solely from the records. In questionable situations it is recommended that the substituted mortgage be expressly discharged of record.
Comment 2. Comment deleted.
Comment 3. Section B of this Standard intends to make its provisions consistent with those of Standard 18.2, entitled to Irregularities and Discrepancies in Discharges of Mortgages and Other Documents regarding the inadvertent reference in a mortgage discharge to a mortgage modification rather than to the mortgage itself. Under both that Standard and this one, such a discharge is given full recognition as a discharge of the entire mortgage. Indeed, it is difficult to conclude otherwise, since the concept of releasing a mortgage modification is virtually unknown in our practice. Universally, a mortgagee seeking to reverse the effect of a modification would do so by means of a new modification, and not by a discharge of only the modification sought to be rendered ineffective. Thus, a reference in a mortgage discharge to a modification, rather than to the mortgage itself, reasonably can only be seen as an inadvertent error, and the instrument is entitled to be given effect as a discharge of the mortgage in its entirety.
September 26, 2008: This standard was added.
September 2022: Amended Section A; removed Section B; renumbered Section C to B; and revised Comment; incorporated Comment 2 in Comment 1; and revised Comment 3.