57 Kan. 744 | Kan. | 1897
The release executed by some of the payees of the Hill note.was ineffectual. It was executed more than six years after the note and mortgage had been transferred by them' to Huntington, and when they had no ownership in either the note or mortgage. During this period Huntington held and cwned the note, and had given evidence of his ownership of the mortgage by a number of releases, which had been duly entered on the public records. The note was negotiable ; and it is well settled that, where such a note is secured by a mortgage, the note is the principal and the mortgage is the incident, and that an assignment of the note is an assignment of the mortgage. No obligation rested upon Huntington to record his assignment in order to protect himself against the subsequent mortgagee. As the mortgage was given to secure a negotiable note, it could be assigned by the mere indorsement or delivery of the note, and there was in fact no assignment to record. It has been expressly held that the bona fide holder of negotiable paper, transferred to him by indorsement thereon before maturity and secured by a real estate mortgage, need not record the assignment of the mortgage. Burhans v. Hutcheson, 25 Kan. 625.
The statute recognizes the assignee as a proper party to release or discharge a mortgage lien, and provides that this may be done by an entry on the margin of the record, signed by him in the presence of the Register of Deeds or his deputy, who shall subscribe the same as a witness. ¶ 3889, Gen. Stat. 1889.
The transfer of the note and mortgage to Huntington appears to have been quite well known to those directly connected with the execution of the mortgages,, and, in addition to that, there was the notice imparted by the releases entered by Huntington on the margin of the record.' Five such entries were made at different times during a period of five years, the first on January 27, 1885, and the last on April 21, 1890.
We think that Huntington had the right to have the whole of the mortgaged premises subjected to the satisfaction of his debt, and therefore the judgment of the Court will be ‘modified to this extent. When so modified the judgment will be affirmed.