It is proper to notice an objection raised by the appellant's counsel on the ground of the omission of Mrs. Zink as a party; and it is sufficient to say, in reference to it, that no such question was raised by demurrer or by the answer, nor, so far as appears by the case, on the trial. It is, therefore, unavailable on the present appeal.
It follows, from the views above expressed, that the judgment must be affirmed, with costs.
36 New York, 44. - 1867.
Parker, J. - If the delivery of the mortgage, without the bond to Wentworth, as collateral security for the debt which such delivery was intended to secure, operated as a valid assignment of the mortgage to Wentworth, the judgment below is wrong and cannot be sustained. On the other hand, if it conveyed no interest in the mortgage to Wentworth, then the defendant, who claims his title through Wentworth's foreclosure of that mortgage, has no defense to the plaintiff's action to foreclose, and no interest in respect to it which, under the facts found by the referee, can avail him upon this appeal.
The single question for consideration then, is, did the delivery of the mortgage by Merritt, the mortgagee, to Wentworth, under the circumstances stated in the referee's report, operate to invest Wentworth with any interest in the mortgage?
The referee finds that, "On the 16th of July, 1853, or shortly thereafter, the bond and mortgage were assigned by the obligee and mortgagee therein named, to John Campbell, by assignment in writing, which was duly acknowledged and recorded on the 16th day of May, 1853. That prior to the assignment of said bond and mortgage to said Campbell, the mortgagee was indebted to Henry T. Wentworth in the sum of $200, borrowed money; that Wentworth desired that said mortgage should be left with him as collateral security for said debt, and that the said Merritt delivered the said mortgage to said Wentworth, according to such request, and as collateral security for said debt of $200; that the said mortgage was so delivered to the said Wentworth before the same was assigned to said Campbell, but that the bond accompanying the same was not delivered to the said Wentworth at the time, nor was anything said about the same, nor is there any evidence that the same was ever delivered to said Wentworth, nor was there any writing executed in reference to such transfer."
As a mortgage is but an incident to the debt which it is intended to secure (Martin v. Nowlin, 2 Burr. 969; Green v. Hart, 1 Johns. 5S0; Jackson v. Blodget, 5 Cow. 202; Jackson v. Bronson, 19 Johns. 325; Wilson v. Troup, 2 Cow. 231; Cooper v. King, 17 Abb. 342), the logical conclusion is, that a transfer of the mortgage without the debt is a nullity, and no interest is acquired by it. The security cannot be separated from the debt and exist independently of it. This is the necessary legal conclusion, and recognized as the rule by a long course of judicial decisions. See cases above cited; also, 4 Johns. 41; 5 Johns. Ch. 570; 9 Wend. 80.
Unless then, the bond was, in effect, assigned with the mortgage, Wentworth obtained no interest in the mortgage. Did the bond or the debt which it evidenced pass to Wentworth? In the first place, the transfer of the mortgage did not of itself operate to transfer the bond, for the legal maxim is the incident shall pass by the grant of the principal, but not the principal by the grant of the incident. So that unless we are authorized to say that such was the intent of the parties, we cannot hold that it did. This is a question of fact, which the counsel for the appellant argues in his points, but unless the referee has found it, as a fact, or found facts from which we are bound to infer its existence, it is a question not in the province of this court to determine. The act done by Merritt, the mortgagee, was the delivery of the mortgage to Wentworth, and the purpose of the delivery was to secure the payment of the debts of the mort-gagee to Wentworth. Does it necessarily follow that the intention of the parties was to transfer the bond? The referee has not found either way upon this question of intent, and, therefore, unless the intent in question is to be inferred, as a matter of legal necessity from what, he does find, it must now be held not to have existed.
If the transfer had been by a written assignment, describing the mortgage alone, and expressing the object to be to secure the debt of the assignor to the assignee, nothing being said about the bond or the debt which it represents and delivery of the mortgage made, it would be impossible, I think, to hold that the intention was to assign the bond. There would be no opportunity for an implication to that effect. The circumstance that the assignment would be inoperative, unless the bond is held to pass, would not give the assignment that effect. The result of such holding would be to reverse the maxim, and make the principal follow the incident. To make the circumstance of its inefficacy a reason for giving it the effect desired, would, manifestly, uproot the maxim, and establish the contrary rule.
The fact that here the transfer was by manual delivery, merely, nothing being said as to the bond, or the indebtedness secured by it, does not afford any stronger evidence of intent to transfer the bond than the case supposed. There is no circumstance in the case not considered in the supposed case, and, as I think, nothing to compel the inference of intent to transfer the bond. I am unable to see, therefore, any escape from the conclusion that, upon this appeal, the judgment of the Supreme Court must be held correct, and affirmed.
116 New York, 566. - 1889.
Action to compel the specific performance of a contract to convey land. By the contract the land was to be conveyed "subject to all existing liens now on said property." There were two liens, at the time, in this order: (1) The Wadsworth mortgage, given by a prior owner, still unpaid when the action was begun. (2) A decree of the Surrogate's Court for the payment of the debts of Ashbel Arnold, a former owner of the land. Both of these liens were prior to defendant's right; an appeal from the decree was pending at the time of the trust herein. Plaintiffs are in possession of the land. Defendant, prior to the commencement of this action, paid off the Wads-worth mortgage, having first been refused an assignment of it. Defendant now asks that the Wadsworth mortgage be declared to be an equitable lien in his favor on the premises. The court below sustained his position.