On the 4th of June, 1855, Minott Mitchell being seized in fee of certain lands, sold and conveyed them to his son, Joseph S. Mitchell, who at the same time executed back to Minott Mitchell a bond in the penalty of $4,000, conditioned to pay to him $2,000, the purchase money, with interest, and a mortgage on the lands to secure the payment of the bond. *Page 344
Thereafter, but on the same day, Minott Mitchell by an assignment in writing under his hand and seal, valid and effectual as between the assignor and the assignee, assigned the bond and mortgage to Benjamin H. Purdy, the original plaintiff and the present plaintiff's intestate.
About three years after such assignment, and on the 10th day of July, 1858, Joseph S. Mitchell reconveyed the lands to Minott Mitchell. Subsequently, and on the 3d day of October, 1859, Minott Mitchell sold and conveyed, by a deed with covenant of seizin and warranty, the lands to the defendant and appellant, Calvin Huntington, for a valuable consideration paid therefor by said Huntington, who took such conveyance and paid such consideration without any actual notice or knowledge of the mortgage which had been so assigned to, and was then held by Benjamin H. Purdy, and without making or causing any search of the records, relying upon Minott Mitchell's representations that he had a good title, free from incumbrances.
The mortgage was duly recorded on the 28th of June, 1855. The deed, or reconveyance, from Joseph S. Mitchell to Minott, was duly recorded on the 6th of October, 1859. The deed to Calvin Huntington was duly recorded, the 9th of January, 1862. The assignment of the bond and mortgage to Benjamin H. Purdy was not recorded until the 19th day of February, 1864, on which day it was duly recorded. The question, and the only question in this case is, did Benjamin H. Purdy's mortgage become void, and he lose his mortgage, security, and lien, by neglecting to have his assignment recorded until after Calvin Huntington's deed had been recorded.
The question I have stated, as the only question in the case, is really nothing more or other, than a question as to the construction of certain portions or provisions of the recording act (1 Rev. Stat., 755 to 763), and all questions of good faith, of notice, c., which have been, or may be, discussed or adverted to in this case, as incidental to the main question of construction, or otherwise, must come by or from *Page 345 the recording act. Independent of the recording act, it would be wholly immaterial whether Huntington had or had not notice of Purdy's mortgage, or whether Minott Mitchell's deed to Huntington was voluntary, or for a valuable consideration.
Is this not too plain to require an illustration? A sells and conveys land to B. B gives back a bond and mortgage for the purchase money. A sells and assigns the bond and mortgage to C, and afterward receives a conveyance of the equity of redemption from B, and then by a full covenant deed, conveys the land, and all his estate and interest in the land to D.
Now, the conveyances, and the bond and mortgage, and their assignment, being left to their common law force and effect, does not D, irrespective of any recording act, necessarily take his conveyance subject to C's mortgage? Could A convey to D any more than the equity of redemption? Could his conveyance to D impair, or in any way affect C's mortgage debt, or mortgage security? Or is there, or can there be, independent of the recording act, as between C and D, any material question of good faith, or of notice, or even as to the consideration of D's conveyance? Is it, or can it be at all material as between C and D, irrespective of the recording act, whether D did or did not pay a valuable consideration for his conveyance, or whether he had, or had not notice of C's mortgage? Of course not. It is almost absurd to state these questions; and certainly, their statement furnishes their answers.
Nay further, no ingenious use of words, or plausible suppositions, or imperfect and deceptive analogies, can show, with the recording act in full force, and in view, that A's conveyance to D, did, or could, in fact, of itself, or byitself, carry, or convey anything but the equity of redemption, for he in fact, had nothing else to convey; and it is even beyond legislative power, however omnipotent, to enable a person to actually convey that which he has not. And, of course, A's deed to D did not, and could not, of itself or by itself, as *Page 346 the act or deed of A merely, with, or without the recording act, operate as an assignment of C's bond, or mortgage, his mortgage debt, or mortgage security, lien or interest in the land.
Nay, still further, courts of law, as well as courts of equity, have for a long time viewed a mortgage, before foreclosure, as a mere security for the payment of the debt, and as only a chattel interest; the debt as the principal, and the mortgage and mortgage interest on the land as the mere incident or accessory. An assignment of the principal, the debt, carries with it the mortgage, the incident. The mortgage interest before foreclosure is assets in the hands of executors and administrators. The mortgage interest, before foreclosure, is not the subject of sale on execution at law. (Jackson v. Willard, 4 John., 41;Blanchard v. Colburn and Ux,. 16 Mass., 346.)
In Jackson v. Bronson (19 John., 325) it was held, that the mortgagor in fee could maintain ejectment against the grantee by deed in fee-simple of the mortgagee.
In Wilson v. Troup (2 Cowen, 195,) it was held, that the mortgagee, though he had conveyed the whole mortgaged premises with warranty in fee, could yet foreclose, for the reason that this conveyance of the land did not pass his interest in the mortgage; that a mortgage is the mere incident of the debt, and that an assignment of the mortgage interest in the land, without the debt, is a nullity. See also, Jackson v. Blodgett (5 Cowen, 206, 207).
In Jackson v. Willard (4 John., before cited), Ch. J. KENT said, that "the mortgage interest, as distinct from the debt, is not a fit subject of assignment;" that "it would be absurd in principle and oppressive in practice for the debt and mortgage to be separated and placed in different hands." In his commentaries (4 Com., 194, 5th ed.), he says: "The assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered to be without meaning or use. This is the general language of courts of law, as well as courts of equity; and the common sense of parties, the spirit of the mortgage contract, and the reason and policy of the thing, would seem to be with the doctrine." *Page 347
The cases of Jackson v. Bowen (7 Cowen, 13, 20); Robinson v. Ryan (25 N.Y., 320), cited by Justice DANIELS in his opinion on a former argument of this case, are not inconsistent with this doctrine, because the decisions of those cases proceeded on the theory that the irregular foreclosure proceedings, c., operated as an assignment of the mortgagee's debt and interest in the land, both. The head note in Jackson v. Bowen, says: "A conveyance by a mortgagee, as upon a statute foreclosure, under the power of sale in his mortgage, even if the proceedings to foreclose be irregular, yet carries all his interest as mortgagee to the purchaser, as well in the debt as in the land."
The whole drift of the argument of Mr. Justice DANIELS in his opinion, and of the argument of the counsel for the respondent is, to show, that with the aid of the recording act, Minott Mitchell's deed to the respondent made him an assignee of Purdy's mortgage interest in the land, as distinct from Purdy's mortgage debt. It is not claimed or pretended, nor could it be, even with the aid of the recording act, that Purdy lost his mortgage debt by neglecting to have his assignment recorded; that it was either extinguished by the act, or otherwise transferred to the respondent.
Now having shown at length, perhaps inexcusably so, that Minott Mitchell's deed to Huntington did not, and could not, as his act and deed merely, without the aid of the recording act, make the respondent an assignee of Purdy's mortgage interest in the land for two reasons: 1st. Because he could not convey that which he had not; and 2d. Because the law would not have permitted him, if he had had Purdy's mortgage interest in the land, effectually to assign it as distinct and separate from the mortgage debt — Let us now turn to the recording act.
How does it operate as a protection or in aid of the subsequent purchaser, grantee, mortgagee or assignee, in good faith, for a valuable consideration, whose deed, mortgage or assignment is first recorded? By avoiding the prior deed, mortgage or assignment, the recording of which has been neglected, *Page 348 as to such subsequent purchaser, c. As to such subsequent purchaser, c., whose deed, c., has been first recorded, theact in effect transfers the estate or interest covered and actually conveyed by and held under such first unrecorded deed, mortgages, c., as of the time of the execution of his deed,mortgages, c.
If the act requires an assignment of a recorded mortgage to be recorded, as against a subsequent grantee in good faith and for a valuable consideration of the equity of redemption, whose conveyance shall first be recorded, then there is an end of this case in favor of the respondent. If it does not, but only requires such assignment to be recorded as against a subsequent assignee in good faith and for a valuable consideration of the mortgage, whose assignment shall first be recorded, then there is an end of the case in favor of the appellant.
I do not question the power of the legislature by the recording act to separate the mortgage interest in the land and transfer it to the subsequent assignee as a distinct thing from the mortgage debt, leaving the debt, as evidenced by the bond or other instrument, in the hands of the first assignee, to be enforced as he may be able to enforce it without the mortgage security.
Now, I think I have shown, but perhaps with inexcusable elaborateness, that the question whether Benjamin H. Purdy lost his mortgage, lien and security by neglecting to have his assignment recorded, is and must be entirely a question under the recording act, and that its decision wholly depends upon the decision of the question of construction, whether the act required him to record his assignment of the recorded mortgage as against Huntington, the subsequent grantee, of Purdy's assignor, who had in fact, and could convey nothing more than the equity of redemption.
This question of construction was decided by this court inCampbell v. Vedder (3 Keyes, 174), and I think rightly decided, in favor of the prior assignee of the recorded mortgage.
I do not think, that the report of this case justifies Justice *Page 349 DANIEL's remark or suggestion in his opinion in this case on a former argument, that this question of construction was not inCampbell v. Vedder. Certainly the question, whether the recording act required the assignee of a recorded mortgage, to have his assignment recorded as against a subsequent mortgagee in good faith was in the case and decided.
It does not follow, because a court might have decided a case upon either of two or more grounds, that its decision is not authoritative, on the ground it was decided.
This question of construction was not in Kellogg v. Smith (26 N.Y., 18), because there, the question was between two assignees of the bond and mortgage. That case was decided on the ground that the second assignee was not an assignee in good faith; that the non-production of the bond and mortgage by his assignor, charged him with notice of the first and prior assignment, and of the delivery of the bond and mortgage to the first assignee.
This decision assumed, that the assignee of a mortgage, whether recorded or not, is required by the act to have his assignment recorded, as against a subsequent assignee in good faith and for a valuable consideration of the same mortgage, whose assignment was first recorded; otherwise the question of good faith would not have been a material question in the case.
This was expressly decided in Vanderkemp v. Shelton (11 Paige, 28). It was also assumed by Justice ALLEN in his dissenting opinion in Kellogg v. Smith, and by Justice PECKHAM in his opinion in Campbell v. Vedder; and I think it plainly follows from sections 1, 37 and 38 of the recording act.
The ingenuity and unsoundness of the argument of the counsel for the respondent in this case, consists mainly in this; that he starts by supposing that the respondent looked at the records, and saw the deeds and mortgages that were recorded, and then he tries, with the aid of the recording act, to make the respondent a subsequent assignee of the mortgage interest in the land distinct from the mortgage debt, and thus put him in a position in which he can claim the protection of the *Page 350 recording act; whereas, in fact, the respondent did not look at the records, or know anything about them; and if he had searched the records and found the deeds and mortgages that were recorded, before he can invoke the protection of the act, or give any materiality to the question of fact or good faith, he must first, without any aid from the act, put himself in a position to claim its protection; that is, show that he is a subsequent assignor of the mortgage, or of the mortgage interest in the lands.
It is absurd to say, or to think, if the respondent had searched the records and found the deeds and mortgage that were recorded, and had supposed from them, that the mortgage or mortgage interest in the lands, had been merged, that such inspection of the records and knowledge of the recorded deeds and mortgage, and erroneous supposition, could or would at all have affected the operation of Minott Mitchell's deed to him, or tended to show, that by that deed, he became the assignee of Benjamin H. Purdy's mortgage, or mortgage interest in the land.
I think the judgment of the Special Term was clearly right, and that the order of the General Term reversing it should be reversed.
All concur, except GROVER, J., who was for affirmance, and SMITH, J., who did not sit.
Order of the General Term reversed; judgment of foreclosure absolute for the plaintiff. *Page 351