By the Ooivtt.
Berry, J.
The paper book in this ease contains nothing except the report of the referee who tried the action below. From this it appears that the respondents executed a mortgage of certain land to one Hamilton, which mortgage has not been recorded. Hamilton shortly after caused to be recorded a deed purporting to be a conveyance of the same land in fee simple, with warranty, from the respondents to him, Hamilton. Subsequently, and on the 21st day of April, 1869, Hamilton executed and delivered a warranty deed of the same premises to one Margaret Gale, who on the 18th day of July, 1860, conveyed with warranty, one-half of the same to Hart and the other half to Cobb. The report further shows, that the said deed purporting to run to Hamilton and the deeds to Margaret Gale, to Hart and to Cobb, by a judgment rendered in a former action, brought for that purpose by the present respondent's, as plaintiffs, “ were set aside, vacated and annulled, and adjudged to be wholly and utterly void, so far as the same affect or beclouded the title and estate of the said plaintiffs in said action. ” It was found in that action that the supposed deed to Hamilton was a forgery.
The appellant claiming title from Hart and Oobb, through sundry mesne conveyances, insists that the warranty deed from Hamilton to Margaret Gale, operated as an assignment of the mortgage to her, and that the effect of the subsequent conveyances, was to assign the mortgage to him, the appellant. There is a great diversity of opinion as to the effect *292of a conveyance of mortgaged premises by tbe mortgagee. See cases collected in 1 Washburn on Real Prop. page 519, et seq.; 1 Hilliard on Mortgages, 221, et seq.; 4 Kent's Com. 194. In Hill vs. Edwards, 11 Minn., our views on this subject were expressed in the following language: “Tbe mortgagee bas no conveyable interest in tbe mortgaged premises, until ■ foreclosure sale, or at least until entry after condition broken, and a conveyance of tbe premises by tbe mortgagee to a third party, unless at least intended to operate as an assignment of tbe mortgage, and transfer of tbe mortgage debt, is entirely inoperative, and sucb intention must be made to appear. ” The mortgage in this case was not due until January 31st, 1861, so that at tbe time of tbe conveyances to Margaret Gale and to Hart and to Cobb, tbe condition of tbe mortgage was not broken, and there could have been no foreclosure sale. Neither does it appear that Hamilton was ever in possession oí tbe mortgaged premises. We discover nothing in tbe facts of this case indicative of any intention on the part of Hamilton, or of any of tbe parties claiming under him, to assign tbe mortgage, or transfer tbe mortgage debt. Indeed there is much to show conclusively, that no sucb intention could have existed in tbe minds of any of tbe parties. Tbe mortgage bas never been recorded. Tbe forged deed purporting to convey tbe fee absolutely to Hamilton, was recorded, and that was the only title which be appeared to have upon the records. Tbe referee finds that Margaret Gale purchased tbe land under tbe belief that Hamilton was tbe owner thereof, and that Hart and Oobb purchased under tbe belief that Margaret Gale was the owner thereof, and that they thereupon went into possession and made valuable improvements on tbe premises; that neither Margaret Gale, nor Hart' nor Cobb bad any knowledge or information sufficient to form a belief as to tbe existence of tbe mortgage until the *293trial of the former action before mentioned. Tlie former trial took place in September 3861 — the deed from Hamilton to Margaret Gale, was executed in April 1859, and the deeds from her to Hart and to Cobb in July 1860.
In view of these facts we think there conld have been no intention to assign the mortgage or mortgage debt, and no assignment of either by the conveyances. This conclusion disposes of the case and renders it unnecessary to consider the other points made on the argument.
The judgment is affirmed.