Case Stated by Mr J W Hutcheson, 24 November 1855

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Nov. 24, 1833. Benefit of lieu to assigned of part of debt. Case started by Mr JW. Hutcheson of Anderson The case is this. Bass sold Phillips a tract of land for $2300, for which he took two notes, on for $1300, ^ due [Jan.?] 1833, & the other for $1000, due [Jan.?] 1836, with a mortage on the land to secure the payments.

One [Bomdon?] became the assignee from Bass of the $1500 note, & subsequently the note for $1000 was assigned to one [Ineen?], who avened showed that at the time he traded for, Bass showed him the mortgage by which it was secured, as an indicement to his to doing.

The questions are

1. [Another?] assigneer of the notes entitled to the benefit of the mortgage lieu, as of course? 2. ^ If so, are they entitled in the order of priority of assignment, ^ or pro [rata?], or in the order of the time of payment?

1. A to the first question, no draft I [rappered] or law be entertained, that the debt in the principal thing, & the mortgage a mere incident thereto, which therefore passes always to the assignee of the debt, at least if there is no [otipulation?] to the contrary. 1 dern. Dig. 33.5 - 6.533, 34; [lnatchmiyo] v Rigland 1 Runo. 466; ^ Schofield v Cox Senah 533; Ragsdale v Hagg [qluab?]. 427; Dryden v [Fril?] 3 Mylne & Craig 670; Whittemore v [Knibb?] 4 Foster (NH). 484 {14 K.I Dig 444. Mortgage. 181}; Center v PLM BK 22 743. [Thid?] 186]; Phillips v BK of Levistowne 18 Penn. [(Harris)?], 394 , [13 M.S Dig. 496 Mortgage 238]; Miller v Hoyles [6 ked.?] eg. 269; [10 [UW?] Dig. 43, Assignment 27]; Keyes v Wood 21 Vernt (6 Washb.) 3.31 [10 K.S. Dig. 330, Mortgages. 103]; Bur-

Last edit about 2 years ago by jtcampbell
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dett v Clay 8 [Billonr.?] 287 [9 U.I. Dig. 338, Mortgages. 152]; Dick v Mawry 9 [Sm. I Maisk?] (Mi) 448 [8 U.I. Dig. 281. Mortgages 192]; Servis v [Starke?] 10 [Sm Tm. 120?] [Uid. 193]; Henderson v HerRegney v Lovejoy 13 W.H. 247 [7 U.i. Dig. 371. Mortg. 115-116]; Mile v [Gray?] Monr. 417 [ 5 U.I. Dig. 42] rod 10 [SM Tm. 631?] [Uid. 196]; Mortge. 261]; Fitzsimmon appeal 4 Barr. 248; ^ Crosby v Brownson 2 Day (Con) Fox v Foster [Do 119 [7 US Dig 50 Assign. 32-3]?]; 425, [2 US. Dig. 344, Mortgage, 1149]; Johnson v Hart 3 John. 322,? Laurence v Knapp 1 [Roof?] (Cont) 248; Terry v Wood 6 [Sm tm?] 1399 Blair v Bass 4 Blackf. 539; [Ineer?] v Hart 1 Johns. 580, [2 U.S. 345, Mortgage, 1153]; Patterson v Hull 9 [Corv.?] 747, [2 U.S. Dig. 345, Mortgs. 1158]; Stevenson v Blank, Santess (N Jersey) 338, [Id 346, Morts. 1184]; Betz v Heebner 1 Penn. 280 [Uid 1189]; Emanned v Hunt 2 Ala. 190 [ Id 347, Mort. 1194]; Laberge v Chauvin 2 Mis. 179 [ Uid. 1209];

In Vermont & Maine, especially in the latter, their doctrine has not met with perfect acceptance, apparently on the ground, vainly urged in Dryden v Frost, & Mybre + Craig 678, namely that a mortgage of land is an interest in real property, which cannot be assigned by parol. In that case the chancellor ([Lo Lottenham?]) got over the objection by the analogy of the vendor's lieu, - equivitable mortgages by deposit of title deeds [t. h 673?]. Here in Vermont it has been held that if all the notes secured by a mortgage are assigned, the mortgage passes with them, but if partially assigned, whether the whole mortgage, or a proportionate part, or any interect therein is assigned, depends on the actual agreement of the parties. Landgon v Keith 9 Vermt 299. [2 U.S. Dig. 344, Mntg. 1145]. And in Maine it has been repeatedly decided that the transfer of the note does ^ not itself operate a legal transfer ^(ie a transfer organizable in a court of law) of the mortgage whereby it is secured. Dwinel v Perly, 32 Maine (2 Redington) 197), [12 U.S. Dig. 441, Mntg. 158]; Waner v Homestead 33 Maine (3 Red.) 197, [13 U.S. Dig. 496, Mntg. 235]; Smith v Keller 27 Maine (14 Shepley) 237, [9 U.S. Dig. 338. Mntg. 143.]

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2. As to the second question; - there is a considerable conflict of authenticity. The better opinion seems to [see?] to the that the first assignee has preference, because by assignment the assigned priority over the assigner , who remained the holder of the other bond, and this priority ^ his subsequent assignment of the latter bond could not take away. The attorneys in [Ragland I Rund. 466?]; ^ Taylor v Spindle 2 [Grah?] 71; 1 [Lum?]. Dig 336.533; 1 [Juck.?], Nelson v Brown 15 [Ala?]. 507, [13 U.S. Dig. 53, Assignment 32]; Keyes v Wood 21 [Vermt?]

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down a contrary doctrine, which however, is support to [the ownsend?]. 1 [Stir. Eq?]. 5476, 2 D 1233.A.

There are several cases, however, which hold that no such priority on the assignor attaches to the note first assigned, such that as the assignment impart no responsibility nor undertaking for the payment of the debt by the debter, it does not bind the assignor to relinquish his own right in favor of the assignee, or entitle the latter to anything more than an apportionment of the securities held in common for it, & another debt not passed by the assignment. It follows, therefore, that a subsequent assignee of the latter obligation, according to these cases, will stand in the same position with the assignor, and be entitled to share in the benefit of all securities originally given on account of both debts. Belding v [Manly?] 21 [Vermt (6 Washb. 1550,?] [10 U.I. Dig. 330, Mortg. 105]; Henderson v Herrod 10 [Sm Tm 631?] [8 U.I. Dig. 281, Mortg. 196]; Hevenson v Black, [Santive?] (NJI 338, [2 U.S. Dig. 346, Mortg. 1184]; Betz v Hebner I Penn. 280, [Id. Mortge. 1190]; Durley v Hays 17 [Str.?] 400 {[@ White + Tadeis L.O 447]?] Mohleis appeal 5 Barr 418 [Uid]. Mohleis appeal is suppilied by Memi Hare + Wallace (notes to White + T. L.C, [Whi supra?]), to have gone far to settle the law, in form of appointment.

There are again, some cases ^ or at least one case, in which ^ it is held that the notes are charged on the fund according to the order of time in which they become due. State Bk v Tweedy S Blackf. 447, [10 US. Dig. 331. Mntg. 112].

In the case under consideration, therefore I am of opinion that the benefit of the mortgage lien passed with the notes to the assignee, thereof, [illegible?] in the order of the assignment, to that Bomden, the ^1st assignee is entitled to priority of satisfaction.

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