5 Cal. 334 | Cal. | 1855
Murray, C. J., and Bryan, J., concurred.
The mortgage from Thayer to Perry was upon record; and operated as constructive notice to all persons. It was unsatisfied, and therefore-it was the subject of sale to- all innocent parties.
The purchaser of the mortgage cannot be charged with constructive-notice of any thing subsequent to the mortgage, except its assignment; or satisfaction, duly entered of record.
The deed from Perry to plaintiff could not operate-as an assignment of the mortgage. The latter is a mere-security for the debt, and cannot pass without a transfer of the debt; so it would seem that the two transactions are totally different- in character: the intent of the one is to convey the title to land—of the other, to transfer a debt with its security. If a contrary doctrine was maintained, it would produce the evil (as in this case) of enabling a net to be thrown for the entrapment of the innocent. The law always must favor the principle, that what is intended to be done, must be done directly.
Two cases are cited by the respondent’s*counsel, which seem to point to a different conclusion. I have examined them, and find them unsustained by authority or by the best reasoning. 14 Pickering, 374, and 15 Ibid., 82.
The result of our judgment is,,.that the decree must be reversed, and. the cause remanded.
