Chancellor, pronounced the following opinion of the Court.
The object of this bill is to foreclose the equity of redemption of certain premises, mortgaged by said Josiah King, to William C. Harrington, now deceased, and one Thaddeus'Tuttle. The orator claims to be assignee of said Tuttle of his half of the premises, and sets forth in his bill, that the mortgagor paid to said William C. Harrington, in his life time, his half of the mortgage money; and the said Isaac R. Harrington is made a defendant in the bill, because he' has since received a mortgage deed from King, the mortgagor, of the same premises. King, the mortgagor, has neglected to appear, and the bill has been taken as confessed, with regard to him. The other defendant, Harrington, has demurred to the whole bill, for want of parties and for want of equity.
It is objected that the orator has not shown himself to have a sufficient conveyance of Tuttle's half of the premises. On reference to the bill, we^find it alleged, that before any payment of any part of said mortgage money, to wit, on, &c. the said Tuttle forthe consideration of one half of the amount of said notes, contained in said mortgage, paid to his full satisfaction, by the orator, did give, grant, convey and assign over to the orators, his heirs and assigns, his the said Tuttle's moiety of said mortgaged premises, with the appurtenances, free and clear of all incum-brances, by an instrument, signed, sealed and acknowledged by the said Thaddeus, in due form of law, and here ready to be produced in Court. The recital of this part of the bill sufficiently answers the objection. It shows a full conveyance to the orator, of all Tuttle's interest in the premises, which is a right to hold the premises till the money secured upon the mortgage is paid.
' It is alleged, however, that the bill contains no averment that the assignment was recorded. That is not necessary to beaver-red. It is not essential to the right, but only regards the question of notice. And it is sufficient, if it appear in proof. But it does not appear, that the fact of recording is important, as between these parlies, while there is no pretence of payment to *36any person. If Harrington disclosed in his answer a payment to Tuttle, without notice of the assignment, that would present a very different consideration.
J, C, Thompson, for the orator. Chs, Adams, for the defendant, Harrington.• It is further objected, that the notes do not appear to have been assigned to the orator. The bill alleges that, after the above assignment of Tuttle to the orator, and after William C. Harrington had received from the mortgagor the payment of one half of said notes, so that all his interest in the same was discharged, the said William C. Harrington delivered the same notes to the orator. If this objection means any thing, it is, that there should be an assignment or conveyance of the notes written upon them, or some writing, describing them as the object of the assignment. The Court consider this unnecessary, provided there be a bona fide sale and delivery of the notes to him to whom the interest of the mortgage in the land is assigned. That appears to have been done in this case. Moreover, the assignment by the1 mortgagee of his mortgage interest, does, of itself, convey the right to receive the payment on the notes described in the mortgage. The possession of the notes is necessary to rebut the presumption of payment which would result from their absence, but is not essential to convey the right. Tut-tle could not have received the pay on these notes after he had assigned the mortgage to the orator, and before the orator received the notes from William C. Harrington, without making himself liable to the orator for the amount, as for money received to his use. Then surely neither the mortgagor nor his as-signee can complain that the assignment is not shown in the bill to be sufficiently complete.
It is further objected, that all this does not entitle the orator to sue alone. The Court consider that, describing William C. Harrington as late of Burlington, deceased, is a sufficient averment of his death, to present the orator as assignee of the survivor of the payees. But that is not all; he shows himself alone to have an equitable interest in the notes and mortgage. He shows himself entitled to receive all the money now due upon the same. It is therefore proper that He should have a decree that the mortgage be.paid to him, or the equity of redemption be foreclosed. It is true the executors of William C. Harrington hold one half the right of the mortgagees; but that is only a trust estate for the benefit of the orator, and, should they intermeddle with the estate, a bill would compel them to execute their trust by quitting their legal estate to the orator.
The demurrer is, therefore, overruled, and the defendant, Harrington, must answer over.
Peentiss, J. absent, by reason of indisposition.