Huntington v. Smith

4 Conn. 235 | Conn. | 1822

Hosmer, Ch. J.

On the first plea in the case before us, the only question is, whether after the expiration of the law-day, and before an entry or foreclosure, the interest of a mortgagee in the premises mortgaged may be set off on execution.

The fee-simple of the land mortgaged is in the mortgagor; and the mortgagee, before entry or foreclosure, has, at most, a chose in action, and a right to the possession, in order to render the mortgage available to the payment of his debt. The mortgage is an incident only to the debt, which is the principal; it cannot be detached, from it; distinct from the debt, it has no determinate value; and the assignee must hold it, at the will and disposal of the creditor, who has the note or bond, for which it is a collateral security. The debt may require only a small part of the land to satisfy it; and by the levy of several executions, the mortgagor, desiring to redeem, may be much embarrassed. The land cannot be taken for the debts of the mortgagee, until his entry upon it, and, in my opinion, until foreclosure. These principles are so thoroughly established, and so frequently has it been decided directly, that mortgaged premises not entered upon by the mortgagee or foreclosed, cannot be taken for his debts, that a more extensive investigation of the subject is unnecessary. Fish v. Fish, 1 Conn. Rep. 559. Portland Bank v. Hall, 13 Mass. Rep. 207. Blanchard v. Colburn & al. 16 Mass. Rep. 345. Jackson v. Willard, 4 Johns. Rep. 41. Jackson v. Dubois, 4 Johns. Rep. 216. Hitchcock v. Harrington, 6 Johns. Rep. 290. Collins v. Torry, 7 Johns. Rep. 278.

The second plea was, that certain promissory notes were accepted by the plaintiff, in full satisfaction of the judgment and execution mentioned in his declaration. The proof exhibited evinces, that the notes were escrows, and not to be delivered, until the execution of a deed, on the plaintiff’s part; (Jackson v. Catlin, 2 Johns. Rep. 248. 259. Lansing v. Gaine & Ten Eyck, 2 Johns. Rep. 300. 306. Catlin v. Jackson in err. 2 Johns. Rep. 520.) and that they never were delivered. It is an undoubted consequence, that they could not have been accepted, in satisfaction.

Neither plea has been supported; and I would advise, that the plaintiff have judgment.

The other Judges were of the same opinion.

Judgment to be rendered for the plaintiff.