Present — E. D. Smith, Johnson and J. C. Smith, JJ.
By the Court
James C. Smith, J.The counsel for the defendant argues that the nonsuit was right, on the ground that in law the incident goes with the principal, and a transfer of the incident, without the principal, is a nullity; and, therefore, the assignment of the chattel mortgage without the note, to the plaintiff, was of no effect, and the plaintiff acquired no title to the mortgaged property.
This, I conceive, is a misapplication of the rule.
The mortgage was assigned to the plaintiff, by Catherine A. Hawkins, the mortgagee and holder of the note, at the request of Edward M. Hawkins, the mortgagor and debtor, upon a new consideration moving from the plaintiff, to wit: A present loan of money by him to Edward • M. Hawkins. The mortgage was refiled by the plaintiff, and from the time of its assignment, was regarded by the parties to it as security for the loan, and not for the note.
"Under these circumstances, the plaintiff has a jprima faeie title to the mortgaged property.
It was competent, of course, for the parties to the original mortgage to agree, that it should no longer continue as a security for the payment of the note. The assignment of the *181mortgage by the mortgagee, at the request of the mortgagor, is evidence of such an agreement. The assignment also had the" effect to transfer the interest of the mortgagor in the mortgaged property, to the assignee, or if not, it may be treated as the execution of a new mortgage, by Edward M. Hawkins (it having been made by his procurement) to secure the debt of the plaintiff; and the latter having re-filed the mortgage, it is a valid security in his hands as against creditors.
In short, the well settled doctrine, that a transfer of the incident without the principal is a nullity, does not apply to the case, for the reason, that both parties to the note and the mortgage agreed that the mortgage should be separated from the note, and should be thereafter an independent security, or rather a security for another debt.
The other questions in the ease require no comment. The nonsuit should be set aside and a new trial ordered, costs to abide event.
Ordered accordingly.