If the delivery of the mortgage without the bond, to Wentworth as collateral security for the debt such delivery was intended to secure, operated as a valid assignment of the mortgage to Wentworth, the judgment below is wrong and cannot be sustained.
On the other hand, if it conveyed no interest in the mortgаge to Wentworth, then the Defendant who claims his title through Wentworth’s foreclosure of that mortgage, has no defence to the Plaintiff’s action to foreclose, and no interest in respect to it which under the facts found by the referee can avail him upon this appeal.
The single question for consideration then is, did the delivery of the mortgage by Merritt, the mortgagee, to Wentworth, undеr the circumstances stated in the referee’s report, operate to invest Wentworth with аny interest in the mortgage ?
The referee finds that, “ On the 16th of July, 1853, or shortly thereafter, the bond and mortgagе were assigned by the obligee and mortgagee therein named, to John Campbell, by assignment in writing, which was duly acknowledged and recorded on the 16th day of May, 1853. That prior to the assignment of said bond аnd mortgage to said Campbell, the mortgage was indebted to Henry T. Wentworth in the sum of $200, borrowed monеy; that Wentworth desired that said mortgage should be left with him as collateral security for said debt, and that the said Merritt delivered the said mortgage to said Wentworth according to such request, and as сollateral security for said debt of $200; that the said mortgage was so delivered to said Wentworth bеfore the same was assigned to said Campbell, but that the bond accompanying the same wаs *64 not delivered to tlie said Wentworth at the time, nor was anything said about the same, nor is there any еvidence that the same was ever delivered to said Wentworth, nor was there any writing executed in reference to such transfer.”
As a mortgage is but an incident to the debt which it is intended to securе (Martin
v.
Mowlin, 2 Burr, 969; Green
v.
Hart, 1
John.
R. 580; Jackson
v.
Blodgett,
Unless, then, the bond was in effect assigned with the mortgage, Wentworth obtained no interest in the mortgage. Did the bond, or the debt which it evidencеd, pass to Wentworth % In the first place, the transfer of, the mortgage did not of itself operate to transfer the bond, fori the legal maxim is, the incident shall pass by the grcmt of the principal, but not thе principal by the grant of the incident. So that unless we are authorized to say that such was the intent of the parties, we cannot-hold that it did. This is a question of fact, which the counsel for the Apрellant argues in his points; but unless the referee has found it as a fact, or found facts from which we are bound to infer its existence, it is a question not in the province of this Court to determine.
The act done by Merritt, the mortgagee, was the delivery of the mortgage to Wentworth, and the purpose of the delivery was to secure the payment of the debt of the mortgagee to Wentworth. Does it necessarily follow that the intention of the parties was to transfer the bond ? The referеe has not found either way upon this question of intent, and therefore, unless the intent in question is to be inferred as a matter of legal necessity from what he does find, it must now be held not to have existed.
If'thе transfer' had been by a written assignment, describing *65 the mortgage alone, and expressing the object to be to secure the debt of the assignor to the assignee, nothing being said about the bond or thе debt which it represents, and delivery of the mortgage made, it would be impossible, I think, to hold that the intention was to assign the bond. There would be no opportunity for an implication to that effect. The circumstance that the assignment would be inoperative unless the bond beheld to pass, would not give the assignment that effect: The result of such holding would be
to reverse the maxim, and make the principal follow the incident. To make the circumstance of its inefficacy a reаson for giving it the effect desired, would manifestly uproot the maxim, and establish the contrary rule.
The fact that here the transfer was by manual delivery merely, nothing being said as to the bond or the indebtednеss secured by it, does not afford any stronger evidence of the intent to transfer the bond than the сase supposed; there is no circumstance in the case not considered in the supposed cаse; and, as I think, nothing to compel the inference of the intent to transfer the bond. I am unable tо see, therefore, any escape from the conclusion that, upon this appeal, the judgment of the Supreme Court must be held correct, and affirmed.
Concurring, Poetes, Bocees, Davies, and Scbuoham.
Hunt and Groves for reversal.
Affirmed.