Brooks v. Ruff

A. J. WALKER, C. J. The mortgage in this case was an assignment, upon a specified condition ; and upon the performance of the condition, the-mortgage was extinguished, and- tha: title revested in the mortgagor. This [374] .proposition necessarily results from'the fact, that the mortgage is but a security for the discharge of a particular debt or duty; and it is well recognized in the law-books. — 1 Hilliard on Mort. 447 ; Gunn v. Young, 2 St. & P. 160 ; Deshaza v. Lewis, 5 St. & P. 91. The condition of the mortgage was, to save harmless the surety of the mortgagor. This the mortgagor unquestionably did, when he obtained a cancellation .of the note, upon which the mortgagee was his surety,; and substituted a bill of exchange, with a different surety, and obtained a discharge of the mortgagee. The mortgage was thus extinguished ; and being extinguished, the assignment of it could not resuscitate it, although the assignment might be upon a valuable consideration. The cases of Bonham a Galloway, (13 Ill. 68,) Mead v. York, (2 Selden, 449,) Abbott v. Upton, (19 Pick. 434,) cited upon the brief of appellant's counsel, conclusively support that position. — See, also, 1 Hilliard on Mort. 461-2 ; Sumner v. Bachelder, 30 Maine, 35. Even the consent of the mortgagor, that the mortgage should be assigned, could not, of itself, revive it. The charge given by the court was erroneous, because it predicated theplain- . tiff’s right of recovery upon the assignment, for a valuable ,. consideration, of an extinguished mortgage, with the consent of the mortgagor. [2§ J,We .-see no reason why a mortgage of personalty, valid¿partee,;.may not be made by verbal contract. 2; Hilliard on Mort. 520 ; Morrow v. Turney, 35 Ala. 136. Such a mortgage would, by virtue of our registration statute, be void “as to.purchasers for a valuable consideration, mortgagees, and judgment creditors without notice” (Code, § 1288)-; but.we think it would be valid as to the parties, and others,nonprotected' by that statute. The evidence conduces to show, that there was a verbal agreement, that the mortgage should stand as a security to the plaintiff This agreement, if it existed, would amount to a verbal mortgage in favor of the plaintiff, and would avail against the defendant, unless he could show that he was one of the persons protected by the registration ..lay/, or [375] '•unless his interest accrued before the making of the verbal mortgage. The evidence does not show that the defendant is one of those persons. What we have already said will, probably, ‘¡fee sufficient ■to guide the court-upon a-future trial, and.weneedj.not -consider farther the. questions presented. Reversed and remanded.