Converse v. Searls

The opinion of the Court was delivered by Royce, J. The argument has very properly been confined to a single point, since the case cited, of Converse v. Cook and others, 8 Vt. R. 164, covers every other ground of importance. It is insisted that the deed of assignment from Rebecca Hapgood and her husband to the plaintiff was void under the statute of 1807, because, at the time of its execution, the defendant was in possession, claiming the land in his own right, and adversely to those grantors. The operation [581] and effect of the several conveyances read in evidence were considered and settled in the case referred to. And it results from that decision, that the defendant held subject to the right of Rebecca Hapgood and her husband, as mortgagees ; that his supposed title, derived from the heirs of Vashni Hemenway, furnished him no protection against that right; but that he stood in the place of Farmery Hemenway, the original mortgagor. Under these circumstances the possession of neither party could prevent the other from transferring his interest to a third person. The possession of the mortgagee has been held to be no obstacle to a conveyance by the mortgagor of his equity of redemption, nor can that of the mortgagor prevent a valid assignment of the mortgage. The latter proposition is not only established by constant and universal practice, but appears to result from the very nature of a mortgage. So long as the right of redemption continues, the interest of the mortgagee in the mortgaged premises is but a collateral security for his debt. As such, it is regarded as an incident to the debt, which is the main subject of assignment. Now it is manifestly foreign to the purpose of the statute to restrain the transfer of such a debt; and although a formal conveyance may be requisite to pass the mortgagee’s legal title in the pledge, it is but the execution of a trust, which a court of equity, in the absence of proof showing a different agreement, will always imply in favor of the assignee of the debt. Judgment of the county court affirmed.