24 Or. 203 | Or. | 1893
delivered the opinion of the court:
The question to be determined is whether the discharge of a mortgage upon the record by a mortgagee, after he has assigned it, operates to cancel such mortgage as against subsequent purchasers, in good faith and for value. If this question is to receive an answer in the affirmative, it must be owing to some legal obligation.which our registry laws impose upon an assignee to record his mortgage if he would protect himself against such subsequent purchasers and encumbrancers. It is well settled that a mortgagee and his assignee are regarded as purchasers under the registry laws. It is a familiar principle that where a debt is secured by mortgage, the debt is the principal and the mortgage is the incident, and that an assignment of the
The assignment of the note carried the mortgage, as the former is the principal and the latter the incident. The assignee stands in the place of the payee. As the assignment of the note carried the mortgage, upon recognized legal principles the security is protected in the hands of a bona fide holder to the same extent as the note itself, unless there is some requirement of the law for the registry of such assignments. In Carpenter v. Longan, 16 Wall. 273, it was held that the assignment of a negotiable note before its maturity raises the presumption of a want of notice of any defense to it, and that this presumption stands until overcome by proof, Mr. Justice Swayne saying: “The case is a different one from what it would be if the mort"gage stood alone, or the note was non-negotiable, or had been assigned after maturity. The question presented for our determination is whether an assignee, under the circumstances of this case, takes the mortgage as he takes the note, free from the objections to which it was liable in the hands of the mortgagee. We hold the affirmative. The contract, as regards the note, was that the maker should pay it at maturity to any bona fide indorsee, without reference to any defenses to which it might have been liable in the hands of the payee. The mortgage was conditioned to secure the fulfillment of that contract. To let in such a defense against such a holder would be a clear departure from the agreement of the mortgagor and mortgagee, to which the assignee subsequently, in good faith, became a party. If the mortgagor desired to reserve such an advantage, he should have given a non-negotiable instrument. If one of two innocent persons must suffer by a deceit, it is more consonant to reason that he who ‘puts trust and confidence in the deceiver should be a loser rather than a stranger.’ ”
In Joerdon v. Schrimpf, 77 Mo. 386, under a similar statute providing for the discharge of the record by the mortgagee and assignee, the court says: “The statute recognizes the assignee of the mortgage as the proper party to enter the satisfaction, and it has been held that
In Lee v. Clark, 89 Mo. 556, it was held that the payee of a note secured by a deed of trust, after he had assigned the note, cannot discharge the property of the lien, as between a bona fide purchaser of the property and the assignee of the note, by entering satisfaction of the debt on the margin of the record, or otherwise. As notes secured by mortgage are transferable by the law merchant, and as, after such transfer, the mortgagee has no right or power to acknowledge satisfaction or to release the mortgage, it follows, as the cases indicate, that a person, desiring to purchase property, who finds on the record a mortgage which purports to be satisfied or released, must ascertain whether it was satisfied or released by the person authorized to discharge it. “Purchasers,” says Mr. Jones, “are bound to know that if the mortgagee has endorsed the notes before maturity to a bona fide holder, the mortgagee has no longer authority to satisfy the mortgage; and therefore they are bound to ascertain whether the mortgagee still held the notes at the time he discharged the mortgage”: 1 Jones, Mortgages, § 814. To the question, often reiterated, what shall a person desiring to purchase do under such circumstances as are disclosed by this record, we may quote the answer of Henry, J., in Lee v. Clark, 89 Mo. 556, “Let it alone until he can ascertain who holds the note. He is under no obligation to buy, and prudence would dictate that he should not buy until satisfied that the owner of the
We are to inquire, then, whether there is any statute which imposes a legal obligation upon an assignee to record his assignment if he would protect himself against a subsequent purchaser or encumbrancer in good faith and for value? In many states provisions are made for recording the assignment of a mortgage, or, in default thereof, of postponing it to the conveyance of a subsequent purchaser or mortgagee. As the purpose of the registry laws is to protect subsequent purchasers against prior and unrecorded conveyances, the utility and convenience of extending such laws to the assignment of mortgages is conceded; but the registration of conveyances, or other instruments, is purely the creation of the statute, and unless it requires the assignee to record the assignment of the mortgage, he is not guilty of negligence in failing to do so. There is no specific direction in the statute upon the subject. The only mention of an assignment, as such, is found in section 3030, Hill’s Code, which provides that “ the recording of the assignment of a mortgage shall not in itself be notice to the mortgagor so as to invalidate a payment made by him to the mortagee.” But this was only a declaration of the rule established by
The question is not what the plaintiffs might have done to apprise the defendant grantees that they were encumbrancers, but what they were legally bound to do
' It results from these considerations that there was no error, and that the decree must be affirmed.