20 Ill. 165 | Ill. | 1858
Without going into the merits of this case, it is sufficient to say that one defect appears which must reverse this decree.
The bill alleges that a note was executed at the date of the mortgage, and for the same sum of money—both on the 9th September, 1838—and the note payable on that day.
Now, it is well understood that the note is the principal thing, the mortgage being only the incident. It is a security given for the debt mentioned in the note, and nothing more, for the mortgagor remains the real owner of the land, if of land, until the breach of the condition and entry by the mortgagee, or foreclosure. Until this time it is personal estate, and passes as personal property upon the death of the mortgagee. The principal right of the mortgagee is to the money, and his right to the land is only as security for the money. A release of a debt secured by mortgage need not be under seal. Ryan v. Dunlap, 17 Ill. R. 40.
In Jackson ex dem. v. Willard, 4 Johns. R. 42, Chief Justice Kent says: “ Lord Hardwicke held that, at law, a discharge of a mortgage debt by parol was considered as a discharge of the mortgage; that even the law considers the debt as the principal, and the land as an accident only.” He further says: “ It is but an incident attached to the debt, and in reason and propriety, it cannot, and ought not to, be detached from its principal. The mortgage interest, as distinct from the debt, is not a fit subject of assignment. It has no determinate value. If it should be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the bond. The control over the mortgaged premises must essentially reside in him who holds the debt. It would be absurd in principle, and oppressive in practice, for the debt and the mortgage to be separated, and placed in different and independent hands.”
If this be so, and we do not question it,, it is all-important, on a bill filed to foreclose, or to sell, that the note should be produced, or a good account given for its non-production. It would be absurd to deal with an “ accident,” as Lord Hardwicke calls a mortgage, without accounting for the main fact or principal thing.
And this rule should hold, especially in old transactions like this, and not free from suspicions of its fairness.
The mortgage and note were both executed on the 9th September, 1838, the note payable on that day. The mortgagor died in 1845, and the mortgage deed not placed on record until ten years after the mortgagor’s death. All these very suspicious circumstances may be explained, and before any decree can pass in complainant’s favor, they must be explained, and the non-production of the note clearly and satisfactorily accounted for. It may be that the note has been paid long since, and that is a reasonable presumption; or, it may be in the hands of another party, who, holding it, would have a right to control this security. Reavis et al. v. Fielden, 18 Ill. R. 77.
The decree of the Oircuit Court is reversed and the cause remanded.
Decree reversed.