Johnson v. Cornett

Gregory, J. This case turns upon the question whether the quit-claim deed from Shook and wife to ■Cornett, passed [60] any estate to the latter. It is clear to a majority of the court that the estate of the mortgagee, in the mortgaged premises, cannot be set up as an outstanding title to defeat the mortgagor. We think it is correctly stated by Mr. Hilliard, in his work on mortgages, that “ the rule, that a plaintiff in ejectment cannot recover premises, the title to which is in a third person, does not apply where the outstanding title is a mortgage.” 1 Hill, on Mort. 145. Chancellor Kent, in his Commentaries, says: “ The assignment of the interest of the mortgagee in the land* without an assignment of the debt, is considered to be without meaning or use.” 4 Kent 194. Mr. Washburn, in his work on “Real Property,” says: “In New York and New Hampshire, on the contrary, it is held that a conveyance or assignment of the mortgaged premises, without specifically assigning the debt, or what is equivalent, would be void. It would pass no estate; any one holding, under such a deed, would be as to the mortgagor a trespasser. This is based upon the idea that the debt is the principal thing; that it cannot be detached from the interest in the land, and a subsequent assignment of the debt would pass the land, notwithstanding such prior deed.” 1 Wash. 521. We think this is in accordance with the weight of modern adjudications, and is the logical result of principles long recognized in this State. In Givan v. Doe, 7 Blackf. 210, the equitable interest in the mortgage debt passed by the assignment. It is true, in that case the doctrine is recognized that there may be a separation of the legal title to mortgaged premises, from the claim at law to the mortgage debt, but the question involved in the case at bar was not then before the court. The principle upon which the doctrine rests, that a quitclaim deed, from the mortgagee to a stranger, passes nothing, was recognized as early as 1838 in this State. Blair v. Bass, 4 Blackf. 539. The entire current of later decisions, as well as the legislation on the subject, has been in the same direction. In Hough v. Osborne, 7 Ind. 140, [61] Stuart, J., in speaking for the court, says: “The only thing easily perceivable as to the transfer of the mortgage security without the notes, was its futility.” Indeed many principles drawn from the technical relation between the mortgagor and mortgagee, as recognized at law, are, in modern times, yielding to good sense and the real interests of the parties. The court below erred in overruling, the motion of appellants for a new trial. The judgment is reversed, with costs, and the cause remanded, with directions to grant a new trial, and foy further proceedings.