This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
7. Betz v. Newcomer, 1 Pen. & W. (Pa.) 280; Keyes v. Wood, 21 Vt. 331; Evertson v. Booth, 19 Johns. (N. Y.) 491. But see Franklin Sav. Bank v. Colby, 105
Iowa, 424, 75 N. W. 346.
8. See 2 Jones, Mortgages, Sec. 817; 27 Cyclopedia Law & Proc, p 1786. Cases cited 35 Cent. Dig. tit. Mortgages, Sec. 621.
9. Pease v. Warren, 29 Mich. 9, 18 Am. Rep. 58; Runyan v. Mersereau, 11 Johns. (N. Y.) 534, 6 Am. Dec. 393; Rigney v. Love-joy, 13 N. H. 247; Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72; Pratt v. Bennington Bank, 10 Vt. 293, 33 Am. Dec. 201; Fred Miller Brewing Co. v. Manasse, 99 Wis. 99, 67 Am. St. Rep. 854, 74 N. W. 535; Orman v. North Alabama Assets Co., 204 Fed. 289.
10. Cortelyou v. Jones, 132 Cal. 131, 64 Pac. 119; Larned v. Donovan, 31 Abb. N. Cas. 308, 29 N. Y. Supp. 825.
11. Ante, Sec. 607(c).
12. Romberg v. McCormick, 194 111. 205, 62 N. E. 537; Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373, 3 Am. St. Rep. 655, 14 N. E. 586; Jordan v. Cheney, 74 Me. 359; Romberg v. McCormick, 194 111. 205, 62 N. E. 537; Commonwealth v. Globe Investment Co., 168 Mass. 80; Hager-man v. Sutton, 91 Mo. 519, 4 S. W. 73; Dick v. Mawry, 9 Sm. & M. (Miss.) 448; Daniels v. Dens-more, 32 Neb. 40, 48 N. W. 906.
13. Kenney v. Jefferson County Hank, 12 Colo. App. 24, 54 Pac. 404; Miller v. Larned, 103 111. 562; llewell v. Coulbourn, 54 Md. 59; Pease v. Warren, 29 Mich. 9, 18 Am. Rep. 58.
14. O'Neal v. Seixas, 85 Ala. 80, 4 So. 745; Arnett v. Willoughthis according with the general rule that such manual delivery of a note or bond or, as it may be otherwise expressed, an oral assignment thereof, is a good transfer, at least in the view of a court of equity.15
(b) Formal assignment. Although, as we have above seen, the transfer of the debt alone vests the benefit of the mortgage security in the transferee, it is usually desirable that the transfer assume a more formal shape, specifically referring to the mortgage, and the statutes ordinarily recognize the propriety of such a formal "assignment of a mortgage," by setting out the form of an instrument available for this purpose, and also naming requirements as to its execution. The chief advantage of such a written transfer in terms of the mortgage lien, as well as of the debt, is that it can in most states be recorded, with the effect of charging persons with notice of the transfer bv the existence of the record, while a mere transfer in terms of a debt, although the debt is secured by mortgage, is not susceptible of record. Such an instrument is regarded as assuming, for the most part, the characteristics of a conveyance of an interest in land, although the essential character of the mortgage lien, as being a mere accessory to the debt, remains the same as before.
The mode of execution of such an express assignment of the mortgage, for the purpose of placing it upon the records, or for other purposes, is to be determined by the statutes of the particular jurisdiction.16 That the transfer is written upon some part of the mortgage instrument, "indorsed thereon," as by, 190 Ala. 530, 67 So. 426; Druke v. Heiken, 61 Cal. 346, 44 Am. Rep. 553; Pease v. Warren, 29 Mich. 9, 18 Am. Rep. 58; Pratt v. Skolfield, 45 Me. 386; Southerin v. Mendum, 5 N. H. 420; Curtis v. Moore, 152 N. Y. 159, 57 Am.
St. Rep. 506, 46 N. E. 168; Kiff v. Weaver, 94 N. C. 274, 55 Am. Rep. 601.
15. 1 Daniel, Negot. Inst. Sec. 741; 8 Corpus Juris., pp. 384, 385.
16. See Smith v. Kelley, 27 Me. 237.
It is ordinarily expressed, is immaterial, such a transfer being as effective as if written on a separate paper, provided it is properly executed for the purpose.17
(c) Assignment omitting reference to debt.
An assignment of the mortgage security, apart from the debt, is a nullity.18 And this appears to be so without reference to whether the mortgagee has the legal title. If he has the latter, he can in some states transfer it without the debt,19 but the mortgage lien, that is, the right to proceed against the land as security, can exist only in favor of the holder of the debt secured.20
It has been decided in a number of cases, apparently, that a transfer or assignment in terms of the "mortgage," is insufficient to transfer the debt secured, and is therefore a nullity, in the absence of a specific transfer of the debt, or of the note or bond given for the debt.21 These decisions purport to be based on the principle above referred to, that a transfer of the "mortgage" without the debt is a nullity. But, it is conceived, the acceptance of this principle should not preclude a transaction from operating to transfer the debt, even though no specific reference is made to the debt as distinct from the mortgage. The question is properly one of the construction of the language used, and in arriving at the proper construction, evidence of the sense in which that language is ordi17. Ward v. Ward, 108 Ala. 278, 19 So. 354; Douglass v. Dur-in, 51 Me. 121; Hills v. Eliot, 12 Mass. 26, 7 Am. Dec. 26; Honore v. Wilshire, 109 111. 103.
18. Jordan v. Sayre, 24 Fla. 1; Sanford v. Kane, 133 111. 199, 8 L R. A. 724, 23 Am. St. Rep. 602, 24 N. E. 414; Johnson v. Clarke, (N. J. Ch.), 28 Atl. 558; Cooper v. Newland, 17 Abb. Prac. 342; In re Pirie. 198 N. Y. 209, 91 N. E587, 1144; Orman v. North Alabama Assets Co., 204 Fed. 289.
19. Post, Sec. 628(d).
20. See Edell v. Stamford, 3 Vt. 202.
21. Pope v. Jacobus, 10 Iowa, 262; Merritt v. Bartholick, 36 N. Y 44, Finch's Cas. 1113 (dictum); Cooper v. Newland, 17 Abb. Pr. (N. Y.) 342; Cleveland v. Cohrs, 10 S. C. 224; Miller v. Berry, 19 S. D. 625, 104 N. W. 311.
Narily used is of primary importance. The expression "assignment of mortgage" is almost universally used, not only by the general public, but also by the legislature, the courts, and the legal profession, to describe the transfer of the totality of the mortgagee's rights, that is, his right to the debt as well as to the lien securing it, and to hold, as these cases apparently do, that when one in terms assigns a mortgage, he intends, not an effective transfer of his rights as creditor against the land, but a transfer of his lien alone, which is an absolute nullity, not only ignores this ordinary use of the term "mortgage," but also is in direct contravention of the well recognized rule that an instrument shall if possible be construed so as to give it a legal operation.22 There are several cases in apparent accord with the views above expressed.23