Severance v. Griffith

2 Lans. 38 | N.Y. Sup. Ct. | 1870

By the Court

Marvin, P. J.

The authorities cited by the counsel'for the defendants, fully sustain the position that the assignment of a mortgage, leaving the debt evidenced by a written obligation to pay, to secure the payment of which the mortgage was given, unassigned, is a nullity. In other words, the debt being the principal and the mortgage the incident, they cannot be separated, and the incident preserved "in the absence of the principal.

But have these cases any application to the present easel In this case there was no bond or other written obligation to pay the debt of $2,000, to secure the payment of which the mortgage was given.

It is alleged in the complaint that Griffith and Young were indebted to Clark in the sum of $2,000, being for a part of the purchase price of lands hereinafter described, referring to the description of the lands in the mortgage. We are not authorized, from this language, to infer any bond or other written obligation to pay the debt. The only written instrument securing the payment of the debt, or evidencing it, was the mortgage; and that does not contain any express covenant to pay. The times when and sums to be paid are specified. This is a case to which the statute applies. “ No mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured; and when there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument, to secure such payment, shall have been given, the remedies of the mortgagee shall be confined to the lauds mentioned in the mortgage.” (1 R. S., 738, § 139.)

Clark, the mortgagee, in transferring the mortgage, parted With all the claim he had against Griffith and Young. He had no remedy against them personally; the remedies he had were against the lands mortgaged, and these passed to his assignee. (See Hone v. Fisher, 2 Barb. ch. R., 560.) It .does not appear that the attention of the Special Term was directed to the statute, nor was it referred to upon the argument at the General Term.

The complaipt stated all the facts, and they, in my opinion, constitute a good cause of action in the plaintiff. The judgment or order of the Special Term must be reversed, and there must be judgment for the plaintiff upon the demurrer, with leave to the defendants to u i Vhdraw the demurrer and answer on payment of costs.

Order reversed.