Givan v. DoeGivan v. Doe
— This was an action of ejectment, commenced against James L. Givan in August, 1841, for certain real estate in Hendricks сounty. Plea, not guilty. Verdict and judgment for the plaintiff.
The lessor’s title, on which the plaintiff relied, was a mоrtgage in fee on the premises, executed to the lessor by the defendant on the 30th of December ^ 1837, to secure a debt of 1,400 dollars, for which the defendant had executed his note to the lessor, pаyable five years after the date of the mortgage, with interest at the rate of eight per cent, per anwjim from the date. \
To defeat the suit, by showing the title out of the lessor, the defendant relied on the following deed: u Know all men by thеse presents that I, Basil Tout, of the county of Hendricks and state of Indiana, for and in consideration of the sum of 1,200 dollars to me sеcured, have granted, bargained, sold, assigned, and transferred, and do, by these presents, grant, bargаin, sell, assign, and transfer, to James M. Gregg and Samuel Melogue all my right, claim, and interest, in and to a certain mortgage and the premises therein described, made and executed to me by James L. Givan on the 30th day of December, 1837, to securе to me the payment of 1,400
We think the instruction should have been given. The mortgagee had the legal title to the land, and the same right to- transfer it by deed that he could havе had to convey by deed any other real estate. Indeed, as the statute is understood to require conveyances of land to be by deed, the legal title of a mortgagee in fee сan be conveyed by him to a purchaser in no other way. R. S. 1838, p. 312. The instrument of writing under seal exeсuted by Tout for a valuable consideration, must be considered as a deed of bargain and salе of the land in controversy. By that deed, the use of the premises passed to the bargainees, and the statute of uses transferred to them the possession. Fite v. Doe, d. Bingham et al.
From this view of the case, it appears that the bargainees have the legal title to the land and an equitable claim to the debt, the legal right to the debt remaining in the mortgagee. Such separation of the legal title to the land from thе claim at law to the mortgage-debt frequently occurs. It happens, for instance, where the mortgage is in fee, and the mortgagee dies. In that case, the legal estate descends tо the heir at law, or passes to the devisee, as trustee for the executor, and the right to the money goes to the executor. 3 Prest, on Abs. 288. — Coote on Mort. 529. In England, when a bond is given for the debt, and the mortgagee conveys the land to another, the debt not being there assignable at law rеmains in the mortgagee, and the legal title to the land is in the grantee. The grantee in such casе usually takes a power of attorney to collect the debt in the grantor’s name. Coote on Mort. 322. But if the mortgagor or his assignee pay the debt before foreclosure, he is entitled to the legal estate.
Considering as we do that the legal title to the premises in question is not in the mortgagee, it follows that this action of ejectment on his demise is not sustainable.
— The judgment is reversed at the costs of the lessor. Cause remanded, &c.