Jackson ex dem. Barclay v. Blodget

Curia, per Sutherland, J. The bond from Hopkins to Barclay, was assigned by Barclay, to Rice, on the 28th of August, 1815 ; and notice of the assignment was given by Rice to Hopkins within three days thereafter. The power of attorney from Barclay to Cole, to ask for and receive, &e. all that was due from Hopkins and others to Barclay, was given the 8th of November, 1815; more than two months after the assignment from Barclay to Rice. So far, therefore, as this demand against Hopkins was concerned, the power of attorney was a nullity. There was nothing due from Hopkins to Barclay upon it. The debt had become the property of Rice, and Hopkins had notice of it. Any payment, therefore, from Hopkins to Cole, upon this, bond, was a payment in his own wrong, and in fraud of the rights of the assignee. If Hopkins had no right to make the payment, Cole certainly had no right to receive-it; and any discharge, either of the debt or the mortgage, as between Hopkins and Rice, was a mere nullity. The power of attorney to Cole contained no express authority to discharge the mortgage. If he possessed that power, it was because it was implied in the authority given to receive what was due from Hopkins, and to give a receipt or discharge for it. But nothing being due from Hopkins to Barclay upon this bond, it having been previously transferred, there could be no implied authority to discharge the mortgage; which did not constitute a distinct and independent debt, but was merely collateral to the bond. It is very clear, that if Cole had no authority to receive payment of the bond, he had none to discharge the mortgage. Whether the assignment of the bond, therefore, to Rice, carried with it the mortgage as its incident, or not, the acknowledgment of satisfaction by Cole, was an unauthorized and void act. [206] It is not pretended that Barclay expressly reserved the mortgage, when he assigned the bond to Rice, for the purpose of discharging it. What then was the legal operation of that assignment upon the mortgage? Was it, ipso facto, a discharge ? If it was not, then the mortgage must have accompanied the bond, although not expressly named in the assignment; for it could not exist as an independent security in the hands of one person, while the bond belonged to another. The debt, (the evidence of which was the bond,) is the principal; the mortgage the accessory •, and omne principóle trahit ad se accessorium. It is said by Lord Mansfield, in Martin v. Mowlin, (2 Burr. 978,) that a mortgage is a charge v.pon the land; and whatever will give the money, will carry the estate in the land along with it, to every purpose ; that the assignment of the debt, or forgiving it, will draw the land after it as a consequence, though it were only by parol. (Richards v. Syms, Barnard. Ch. Rep. 90, 93.) This opinion of Lord Mansfield was expressly recognized by the Court of Errors, in Green v. Hart, (1 John. Rep. 590.) There the mortgage was delivered to the assignee with the nóte, which was assigned. But Spencer, J. who delivered the unanimous opinion of the Court says, “ Had the mortgage not been delivered, nor any thing said about it, I should have considered the respondent, (the assignee,) on the failure of the mortgagor to pay the note, entitled to the aid of the mortgage.” He observes, that it was competent to "the parties to agree, that the mortgage should not be resorted to by the holder of the note ; but the proof of such agreement lies on the appellant, and it should be explicit. So in Jackson v. Willard, (4 John. Rep. 43,) which was a case involving the question, whether lands mortgaged can be sold on an execution against the mortgagee, before foreclosure, it is observed by Kent, Ch. J. that “ the mortgage, before foreclosure, is but an incident attached to the debt, which cannot be detached from its principal; that the mortgage interest, as distinct from the debt, has no determinate value, and is not a fit subject of assignment. If i should be assigned, the assignee must hold the interest a the will and disposal of the creditor who holds the bond. [207] The control over the mortgaged premises must essentially reside in him who holds the debt. It would be absurd in principle, and oppressive in practice, for the debt and the mortgage to be separated, and placed in different and independent hands. (Pow. on Mortg. 1115-16.) The mortgage is the accessory, and accessorium non ducit, sed sequitur principóle? The mortgage in this case, therefore, although not expressly named, accompanied the bond, in judgment of law, when it was assigned to Rice; and vested in him all the rights of the mortgagee. There is no necessity, therefore, of resorting to the subsequent assignment of the mortgage itself by Barclay, except as affording evidence that he had not complied with the condition mentioned in the original assignment of the bond, upon which that assignment was to become void; and that the assignment, therefore, though originally conditional, as between Barclay and Rice, had become absolute. The defendant, or those for whom he holds, claim as grantees of Hopkins, under a deed of December 10th, 1818; and seem to put forth as a ground of equity, at feast that the mortgagee, or his assignees, by leaving the mortgage m the hads of Cole, had been guilty of laches ; and enabled him and Hopkins to perpetrate a fraud upon an innocent purchaser. There is nothing in this case, to show that the grantee of Hopkins was an innocent purchaser; that he had not full notice of all the facts in the case. But admitting that he had not, it;would not vary the legal rights of the parties. I am of opinion that the plaintiff is entitled to judgment. Judgment for the plaintiff.