Pope & Slocum v. Jacobus

Weight, 0. J. Two questions are made: First, Does tbe assignment of tbe mortgage carry with it tbe tbe note; Second, If it does, will sucb an assignment, being made before tbe maturity of tbe note, baye tbe effect of cutting off all equities in fayor of the makers of tbe note against tbe payee. Tbe assignment of tbe debt, it is conceded as a general rule, draws after it tbe mortgage, as a consequence or appurtenance to it. An assignment of tbe interest of tbe mortgagee in tbe land, without an assignment of tbe debt, is considered as tbe mere transfer of a naked trust, and is without any meaning or use, as far as relates to tbe debt. “ This ” says Chancellor Kent “ is tbe general language of tbe courts of law, as well as tbe courts of equity, and tbe common sense of parties, tbe spirit of tbe mortgage contract, and tbe reason and policy of tbe thing, would seem to be with tbe doctrine.” 4 Kent 194, 1 Hill, on Mortg. 164, 166, 170; Johnson v. Hart, 3 John. Cases 329; 2 Story’s Eq. 1023, note; Wilson v. Troup, 3 Cow. 195; Garroch v. Sherman, 2 Hallstead Ch. 219. In one.case it is said that tbe land is but appurtenant to tbe debt; whoever owns tbe latter is likewise owner of tbe former,” and again “ it is but an incident attached to tbe debt, and in reason and propriety it cannot and' ought not to be detached from its principal. Tbe mortgage interest as distinct from tbe debt is not a fit subject of assignment. It has no determinate value.” And see Crow, McCreary & Co. v. Vance, 4 Iowa 434; Carroll v. Reddington, 7 Iowa 386; Wood v. Sands, 4 G. Greene 214. In this last case it is said that tbe assignment of tbe mortgage without tbe assignment of tbe note, created no liability against tbe assignor whatever. 'That [264] case is not unlike this, in tbe fact that the petition alleged that the note was assigned, while the copy attached showed that it had not been indorsed. We do not wish to be understood as saying that the written assignment of the mortgage, and a parol assignment of the note, or even a parol assignment of both might not bo good in equity as between the parties, or for some other purposes. We only hold that the assignment of the mortgage alone, does not so transfer the principal thing, the debt, as to cut the mortgagors off from any equity existing in their favor against the note, to the same extent as if it was in tho hands of the payee. The judgment on the demurrer is affirmed.