39 Md. 461 | Md. | 1874
delivered the opinion of the Court.
Arthur Crisfield being indebted to S. N. Ware, in the sum of six thousand and five hundred dollars, on account of the purchase of a tract of land called ICTusculum,” executed his single bill, dated January 1st, 1867, for the payment of the same, one year after date thereof.
On the 28th of January, Crisfield and wife mortgaged said property to secure the payment of said single bill— the mortgage reciting upon its face the single bill as the consideration of the same.
On the 6th of April, 1867, Ware assigned and delivered the single bill and mortgage to John W. Crisfield, who, on the 25th of August, 1869, assigned and delivered the same to Jacob Tome, as collateral security for an indebtedness to said Tome.* The mortgage was assigned in writing, but the assignment was .not recorded.
The mortgaged premises were sold under a decree to foreclose an older mortgage, and the surplus fund after satisfying the older mortgage, is claimed by Tome under his assignment of the mortgage debt, and of the mortgage itself, and by Byles under a subsequent assignment of the mortgage, upon the ground that the assignment of the mortgage to Tome, was not recorded. The single question presented, is whether it is necessary that an assignment of a mortgage should be recorded to entitle a prior assignee of the mortgage debt and mortgage, to the lien intended to be secured thereby, as against a subsequent assignee of the mortgage, claiming under an assignment executed and recorded ?
It is a well recognized rule in Equity, that an assignment of a debt secured by a mortgage, operates as an assignment of the mortgage. It is not necessary in such cases, that there should be an assignment of the mortgage, to entitle the assignee to the benefit of the same, and where an assignment is made, there is no reason why it should be recorded. In Equity the mortgage is but a security of the debt, and the assignment of the latter, necessarily carries with it the former, unless there is some statutory provision in this State, contravening this well established rule in Equity, the right of Tome, as prior assignee to the surplus fund not only as against the assignor, but all subsequent assignees, is too clear for argument. The appellant, however, contends that under the Act of 1868, cli. 373, it was necessary that the assignment to Tome should have been recorded, in order to perfect his title to the mortgage lien as against a subsequent
In Robinson vs. Marshall, 11 Md., 251, in referring to what was necessary to perfect the title of an assignee of a debt or chose in action, the Court was considering the question of payment by the debtor to the assignor without notice. In such cases payment to the assignor, or to a subsequent assignee, would unquestionably be a good payment, even against a prior assignee.
The question discussed in White and Tudor’s Equity Cases, 236, Law Lib., as to the equities affecting the right of an assignee, whether equities of the mortgagor or third persons, does not arise in this case. No equity is set up here by Arthur Crisfield the mortgagor, nor by any one else, so far as the mortgage debt is concerned.
On the contrary, it is admitted to be due, and the only question is whether the claim of Tome, prior assignee, is to be preferred to the claim of Byles, a subsequent assignee. The question to our minds, lies within a very narrow compass, and is too plain for contention.
Decree affirmed.