While I concur in the disposition made of this case, I am not prepared to concur in the reasons assigned by Judge HALL for the conclusions reached.
The provision for a partial release is a part of the very terms of the instrument that creates the lien itself. By the terms of the deed a lien is "retained * * * until" the indebtedness is "fully paid, * * * except that vendor agrees to release such a proportional part of said land, when payment shall be made, amounting to not less than one-tenth of the balance due." There is no express limitation on the life of the exception. Why should it not exist so long as the lien itself exists, and that would be "until" the indebtedness was "fully paid," or the lien foreclosed. When we hold that the exception ends with the maturity of the indebtedness and while the lien still exists we read something into the contract that is not in it. It does not appear to me that the exercise of the right to secure a partial release, after the maturity of the indebtedness, is inconsistent with the duty to pay all of the indebtedness at such time. The parties to the contract may limit the lien in such way as they may see fit. The right granted is to secure the release of a part of the land and the part payment is a mere condition of the exercise of this right, and the contract does not provide that the maturity of the indebtedness shall put an end to this right. The exercise of the right after maturity does not in any manner limit plaintiff's liability for the payment of the balance nor the right of the mortgagee to enforce the same against the unreleased portion of the land, and through execution against other property. The mortgagee is in no better or worse position whether the release is secured before or after maturity of the indebtedness. I am of the opinion that, as the contract provides for a partial release on partial payment and contains no limitation as to when the right to secure a partial release must be exercised, it will continue as long as the lien continues. As I understand the decisions, the weight of authority supports this conclusion. The Massachusetts decisions and the federal court decision cited by Judge HALL are the only courts whose decisions I have read that directly hold that, in the absence of something in the face of the mortgage or notes limiting the time within which the right to secure a partial release must be exercised, such right may not be exercised at any time before foreclosure. The rule was established in Massachusetts in the leading case of Reed v. Jones, 133 Mass. 116, by a divided court. In the New York cases the contract in each instance contains special provisions which the court held to have the effect of showing that it was the intention of the parties to limit the time within which the release might be secured. The following cases hold that, where the contract provides for a partial release on part payment and contains no limitation of time within which the right is to be exercised, it continues until the lien is foreclosed. American Net Twine Co. v. Githens, 57 N.J. Eq. 539, 41 A. 405; Vawter v. Crafts, 41 Minn. 14,42 N.W. 483; Commercial Bank v. Hiller, 106 Mich. 118, 63 N.W. 1012; Gammel v. Goode, 103 Iowa 301, 72 N.W. 531.
The provision for release does not specify the particular land to be released nor how it is to be selected. Some authorities hold that such provision is void for uncertainty. McCormick v. Parsons, 195 Mo. 91,92 S.W. 1162; Hanna v. Palmer, 61 N.E. 1051. Under the decisions of this state the grantee of the right would have the power of selection (Oxsheer v. Watt, 91 Tex. 124, 41 S.W. 466, 66 Am. St. Rep. 863), and the grant would not fail for uncertainty, provided the instrument was sufficiently certain as to the rule that must be followed in making the selection of a proportional part of the land. Does the provision for release of a proportional part of the land mean proportional in area, or proportional in value? The proportion may be with reference to either, and if the instrument is so ambiguous as that it cannot be *Page 1100 determined which was meant, then it could not be given effect. There are good reasons for holding that the parties might have intended to have the proportion determined in either way. There would be less difficulty in carrying the provision into effect under the power of selection if the proportion is regarded as applicable to area, because the grantee would then only have to designate the particular part of the land constituting the proportional part to which he desired release, while, if the proportion has reference to value, differences of opinion might arise as to the relative value of different parts of the land, which could only be settled by a judgment of court, and the power become impossible of being given effect except through the courts. On the other hand, it would hardly seem probable that the parties intended to place an arbitrary power of selection in the hands of the party granting the lien that might be used to destroy or impair the relative value of the security. It seems to me to be rather evident that the parties only intended by the provision in question that the value of the security should be reduced in proportion to the reduction made by the payment of the indebtedness constituting the lien. If this be the intention of the parties, then such intention could only be effected by holding that the proportion of the land to be released is to be determined by its value, rather than its area.
In the case of State v. Commissioners of S. U. Land, 34 Wis. 162, a law donating public lands to aid in the construction of a canal provided that as a certain proportion of the work was completed the Governor should certify the proportion of said lands the donee had become entitled to in consideration of the work done, who should thereupon be entitled to patent to "said proportion of said lands as selected" by the donee, and the question in the case was as to the meaning of "proportion" as thus used. The question was discussed at some length, and the difficulty with reference to selection, if the proportion was to be determined in value, was considered by the court, but was held not to be controlling, and the court held that the proportion was to be determined with reference to value rather than area in such case.
If it can be said that the meaning here is not ambiguous, I am inclined to think that it should be construed as authorizing a release of a proportional part in value of the lands upon payment of such proportion of the indebtedness. The record shows that since the execution of the note sued on the defendant had erected improvements of the value of $3,000 on the half acre of land which was sought to be released. It was also shown that the remaining 4 1/2 acres of land was worth between $200 and $250 per acre. The improvements became a part of the realty and subject to plaintiffs lien, and of course, if value is to be taken into consideration in determining the proportion, defendants are not entitled to a release of this one-half acre. I am therefore of the opinion that the judgment should be reversed and rendered for the plaintiff for this reason. *Page 1101