Dutton v. Ives

Manning J.: If we admit Ives has made out a case that would' entitle him to have the Cobb mortgage apply in payment of the Walker mortgage, as against Allen, the mortgagee, it can not avail him in the present suit brought by Dutton, the assignee of the mortgage. The assignee of a mortgage takes it subject to all equities existing between the mortgagor and mortgagee. This, as a general rule, is correct, but, like most general rules, it has its exceptions; ’ and the case before us is one of them. The mortgage is for the payment of Walker’s promissory note, given to Allen, and made payable to him, or bearer, with interest, in installments. The first installment had been paid, and the others were not due when the assignment was made to complainant, who, at that time, had no knowledge of the written agreement between Allen and Walker. In an action at law on the note, by complainant against Walker, the payment of the Cobb mortgage by Walker would be no defense; and as the liability of Walker and of the mortgaged premises are co-extensive for its payment, and Walker is liable) so are the mortgaged premises. Reeves vs. Scully, Walk. Ch. 248; 3 Chand. 94; 4 Ibid. 153. The written agreement between Allen and Walker was recorded before the assignment to complainant; and it is insisted the record is notice to complainant. The instrument is not one entitled to record under the registry law, and the record therefore is notice to no one. The 'object of registry laws is to protect subsequent bona fide purchasers against prior purchasers whose deeds have not been recorded. There is no question here between different purchasers of the mortgaged premises from Allen, or between the different assignees of the Walker mortgage from him. [520] There was no merger of the Cobb mortgage. The Walker mortgage, intervening between it and the fee, was sufficient to prevent a merger; while the formal assignment of the mortgage to Mortimer Ives, when he paid it,- shows his intention to keep it alive as a subsisting incumbrance on the estate. And on his death it passed to his personal representative, and not to his father, who inherited the land, unless it was kept alive for the protection of the inheritance, in which case, it probably would. But it is not necessary to decide that point, and we give no opinion upon it; more especially as the personal representative of Mortimer Ives is not a party before us. The decree of the Court below must be affirmed, with costs. All the Justices concurred.