Jenkins v. . Wilkinson

McRae, J.: The first exception is to evidence offered by plaintiff to prove that the $900 note and mortgage were delivered to plaintiff as collateral security for the other note. We suppose that the ground of the objection by defendants was a contention on their part that the note and mortgage could not be transferred by delivery and without writing. A note may be transferred by delivery and without endorsement. The Code, § 177. Such transfer-does not pass the legal title according to the law merchant, but the transferee is the equitable assignee thereof. Miller v. Tharel, 75 N. C., 148; Jackson v. Love, 82 N. C., 405 ; Kiff v. Weaver, 94 N. C., 274; Carpenter v. Tucker, 98 N. C., 316. The debt is the principal thing. The mortgage to secure it is the incident or accessory. “Equity puts the principal and accessory upon a footing of equality, and gives to the assignee of the evidence of the debt the same rights in regard to both.” *536 1. The transfer of the note carries with it the security without any formal assignment or delivery, or even mention of the latter. Carpenter v. Lorgan, 36 Wall., 271. See also Colebrook on Collateral Security, § 141, where a multitude of authorities are cited. 2. The issues submitted by his Honor seem to cover all the real contentions in the case. As to the first issue tendered by defendant, it made no difference to whom the money was loaned, if any money was loaned. The action was brought to foreclose a mortgage made to secure the payment of a note under seal, and transferred to the plaintiff, who, as we shall see, was the proper party to bring the action. The question of the statute of limitations could be fairly presented in all its aspects under the third issue; and it seems that the note itself was barred. Indeed, although an action upon the note was barred by the statute, the lien created by the mortgage is not impaired in consequence of the running of the statute of limitations on thé debt. Wood on Limitations, § 222. Clark’s Code, § 152 (3), and cases cited, p. 45 3. The defendants contend that the plaintiff could not maintain this suit, because the note given by L. A. H. Wilkinson and endorsed by M. A. Wilkinson belonged to the firm of Craig & Jenkins, and not to the plaintiff. It appears to have been made to the plaintiff L. L. Jenkins, Cashier. It is found that plaintiff was cashier of the banking firm for whose benefit the note was given and the collateral transferred. He was the holder of the collateral as trustee for the firm, and the action was properly brought in his name. The Code, § 179. No Error.