25 Kan. 625 | Kan. | 1881
' The opinion of the court was delivered by
This was an action brought by plaintiff against the defendants to recover upon two negotiable promissory notes, and to foreclose a mortgage upon real estate giyen to secure their payment. The case was submitted to the court without a jury, and the findings of fact are substantially as follows:
On the 25th day of February, 1873, J. C. Hutcheson executed and delivered to Taylor Brandon two promissory notes, payable to Brandon or order, for the sum of $500 each — one of them payable November 1,1874, and the other
Upon the foregoing findings, the trial court decided the notes set forth in the petition to be paid and the mortgage null and void; that Wm. B. Willard was entitled to the first lien on the 70 acres deeded by Hutcheson to Brandon on March 9th, 1875, and that John L. Earwell was the legal owner of the 130 acres deeded him on October 2d, 1877.
As the entry upon the book of mortgages in the office of the register of deeds-of Douglas county on March 9th, 1875, was signed by the mortgagor, instead of the mortgagee, or any party representing him, such entry was, as to third persons,' a mere written statement on the part of the mortgagor in favor of his own interest, that he had paid the mortgage of October 20th, 1873, given by him to secure the notes delivered to Brandon, but did not discharge or release of record, pursuant to the statute, such mortgage. (Comp. Laws of 1879, oh. 68, § 5.)
The principal question, therefore, in the case is, whether the conveyance of the 70 acres of land by Hutcheson to Brandon on March 9th, 1875, was a payment of the notes and a valid satisfaction of the mortgage, no actual notice having been brought home to the former of the assignment before maturity of the notes and mortgage to plaintiff. The court below seems to have held the conveyance a full payment and satisfaction of the mortgage. From- the conclusions of law stated, the court must have decided that where a negotiable note is secured by mortgage on real estate, and both are assigned by indorsement thereon before maturity to a bona fide purchaser, the mortgage is taken subject to all payments made by the mortgagor to the mortgagee at any time before actual notice to the mortgagor of such assignment. Counsel for defendants claim this to be the law, and have cited many respectable authorities in support thereof. We think the doctrine thus announced not sustained by reason or sound policy, and if adopted it would be an unfortunate obstacle to commercial transactions so common in this state as the sale
“The note and mortgage are inseparable. The former is essential, the latter is an incident. An assignment of the note carries the mortgage with it, while the assignment of the latter alone is a nullity. . . . All the authorities agree that the debt is the principal thing, and the mortgage an accessory. Equity puts the principal and accessory upon a footing of equality, and gives to the assignee of the evidence of the debt the same right in regard to both. There is no departure from any principle of law or equity in reaching this conclusion. There is no analogy between this case and one where a chose in action standing alone is sought to be enforced. The fallacy which lies in overlooking this distinction has misled many able minds, and is the source of all the confusion that exists. The mortgage can have no separate existence. When the note is paid, the mortgage expires. It cannot survive for a moment the debt which the note represents. This dependent and incidental relation is the controlling consideration, and takes the case out of the rule applied to choses in action where no such relation of dependence exists.”
Counsel for defendants say, that conceding the correctness of the general doctrine laid down in Carpenter v. Longan, supra, yet, the adoption of §3, ch. 68, Comp. Laws of 1879»