Cottrell v. Adams

BLODGETT, District Judge. The only question to be decided is, whether this assignment is such a grant of the fee of the •mortgaged premises as authorizes the as-signee to maintain an action of ejectment for the recovery of the premises conveyed. The rule is well settled that a mortgagee can maintain ejectment after condition broken, for the recovery of the mortgaged premises; but when an assignee attempts to exercise the rights of the mortgagee, it seems to me, he must, if he would attempt to recover the possession of the premises by ejectment, show a conveyance or grant to himself of the estate 625 which he seeks to recover. And I do not think that this assignment is a grant of the fee in the land — the mortgaged premises. It authorizes the holder or assignee to proceed and foreclose the mortgage, or to take any other remedy at law or equity. Now there is no grant of the fee, and it is well settled that no person can recover possession in ejectment unless he shows that he is entitled to the estate which he describes in his declaration. He has an equitable interest in the mortgage as assignee of the debt thereby secured. NOTE [from original report]. A mortgagee may in Illinois bring ejectment after condition broken. Carroll v. Ballance, 26 Ill. 9; Karnes v. Lloyd. 52 Ill. 113: Pollock v. Maison. 41 Ill. 510: Morrison v. Buckner [Case No. !),S44]; Hughes v. Edwards, 9 Wheat. [22 U. S.] 4S9. As to how far mortgagee is considered as the owner of the fee, consult Nelson v. Pinegar, 30 Ill. 473; Moore v. Titman, 44 Ill. 307. The assignment of a note secured by mortgage carries with it only an equitable interest. Edgerton v. Toung, 43 Ill. 404. The transfer of a note secured by mortgage carries the mbrtgage with it. Dick v. Mawry, 9 Smedes & M. 44S; Henderson v. Herrod, 10 Smedes & M. 631; Burdett v. Clay, 8 B. Mon. 2S7. But the estate of the mortgagee can only be assigned by deed. Warden v. Adams. 15 Mass. 232; Smith v. Kelley, 27 Me. 237. In Massachusetts the assignment of a mortgage debt is but an equitable assignment of the mortgagee's interest, and has no direct effect upon the legal estate. Damon v. Bryant, 6 Gray, 564: Toung v. Miller, Id. 152; Crane v. March, 4 Pick. 131; Cutler v. Haven, 8 Pick. 490; Warden v. Adams, 15 Mass. 232. In New Hampshire, however, as also in Pennsylvania, Ohio, and several other states, it is held that the assignment of a mortgage debt carries the mortgagee’s estate in the land, in the same manner as if passed by deed. Page v. Pic-rce, 0 Post. 317: Southerin v. Mendum, 5 N. H. 420; Smith v. Moore, 11 N. H. 55: Rigney v. Lovejoy, 13 N. H. 247. The assignment of the note or bond which a mortgage is intended to secure, unless there is some contract to the contrary, is an equitable assignment of the mortgage; and the assignee of the note or bond may use the name of the mortgage-3 to enforce the mortgage at law. Graham' v. Newman, 21 Ala. 407. But if the mortgage itself is assigned in proper form, the legal title of the mortgagee passes to his assignee, and proceedings at law to enforce the mortgage must be in the name of the assignee. Id. But does the legal estate pass by the terms of the assignment? It seems to me not. There are no words of grant. There are no words by which it would appear that the assignor intended to convey the mortgaged premises themselves to the assignee. He simply authorizes and empowers the holder of this bond, “at any time, in case said company shall fail to perform any of the foregoing stipulations by neglecting to pay either principal or interest on this bond, when the same shall become due, to proceed and foreclose the said mortgage, or to take such other legal remedy on said note and mortgage against said mortgagee or against said company, on its bond or on both, as shall seem proper and expedient to said holder thereof.” Before ejectment can be maintained for the possession of the property, there must be an investiture of the legal estate in the plaintiff. I shall, therefore, be compelled to find for the defendant