9 Wend. 80 | N.Y. Sup. Ct. | 1832
By the Court,
The instrument executed by Chester Francis to the plaintiff on the 25th of July, 1828, was clearly designed by the parties to be a mortgage upon the steam engine, which Langdon had previously sold him, and was intended to secure the balance of the consideration money remaining unpaid for it. It has all the essential atttributes of a mortgage of personal property i it recites the original purchase of the steam engine from the plaintiff, the payment of part of the consideration money, the giving of two notes for the balance, and then states that for securing the payment of said notes, the said Francis hereby pledges and gives a lien on said engine to said Langdon, and in case the notes are not paid, the said Langdon shall hold the same as security and to save him harmless ; the said Francis, however, to retain the possession until the notes shall become due, and if they are not paid, then the said Langdon to take possession of said engine. It has all the attributes of a mortgage, and none of those of a pledge as distinguished from a mortgage. Brown v. Bement, 8 Johns. R. 96. The last of these notes became due the 1st of February, 1829, and the engine was sold by the defendant on the 13th of June, 1829, under an execution against Francis, and as his property, received by him on the 4th of April preceding. A mortgagee of personal property, upon the failure of the mortgagor to perform the condition
,. The notes which this mortgage was given to secure, appear to have been assigned or transferred to one Pitcher. When they were so transferred does not appear. But it is shown that he obtained judgment upon them in his own name against Francis, on the 8th May, 1829. Did not the mortgage pass with the notes as incident to them, and should not this action have been brought in the name of Pitcher instead of Langdon ? I do not perceive how such conclusion is to be resisted. A mortgage of either real or personal estate is but an accessary or incident to the debt, or the security which is given as the evidence of the debt. The assignment of the security passes the interest in the mortgage. The mortgage cannot exist as an independent debt. If by special agreement it does not accompany the security assigned, it is ipso facto extinguished, and ceases to be a subsisting demand. This doctrine is fully considered in the case of Jackson, ex dem. Barclay & Bayard, v. Blodget, 5 Cowen, 202, where the principal cases are collected. 2 Burr. 978. Barnard. Ch. R. 90, 93. 1 Johns. R. 590. 4 id. 43. Powell on Mortg. 1115, 16. If the notes were assigned or endorsed to Pitcher before they became due and before the mortgage was forfeited, the inchoate interest of the mortgagee must have passed with them. If the transfer of the notes was after they fell due and subsequent to the forfeiture of the mortgage, then the assignment operated as a transfer of the interest of the mortgagee, Langdon, whatever it might have been, in the mortgaged chattel; and in either aspect, the action of trespass should have been brought in the name of Pitcher. If Pitcher was a mere trustee for Langdon, that fact should have been proved upon the trial.
Although this is a case subject to the opinion of the court, it may be proper to give the plaintiff the election of a new trial, upon payment of costs. If he does not signify such election in thirty days, then judgment is given for the defendant.