Aymar v. Bill

5 Johns. Ch. 570, 1821 N.Y. LEXIS 126, 1821 N.Y. Misc. LEXIS 45

• Court: New York Court of Chancery
• Decided: December 31, 1821
• Status: Published

Opinion

The Chancellor.

The interest of Crane, as mortgagee of the lot in Vandewater street was not, at the time of the execution of the mortgage to the plain tiff, an interest in the land, capable of being the subject of sale, either absolutely, or by way of mortgage, distinct irom the debt it was intended to secure. It does not appear from the case that the debt to Crane was even due, when the mortgage to the plaintiff was executed ; and it is clearly to be inferred, that the mortgage had not been foreclosed, or possession taken under it. Though such a mortgage interest may be, by way of extinguishment, absolutely released to the party, having the equity of redemption, yet it cannot be conveyed asa still subsisting interest, by way of mortgage, because ¡hat would separate she debt and the pledge, the latter to reside in one person, while the debt resided in anothen This cannot be done; and the case of Jackson v. Willard, (4 Johns. Rep. 41.) is decisive on the point-It is evident, that no such absolute release was. intended in ¡his case; and the act of Crm& in uniting in the mortgage with Bill, is rather to be referred to the legal estate which he derived from the plaintiff, than to his interest as such a mortgagee. He had an interest, which he was capable of mortgaging, and which he no doubt intended to mortgage, and the mortgage deed can have full operation by being applied to that interest. It cannot be applied to> his interest as a mortgagee in the other lot, consistently with principles of law, because he had no interest, in that character, capable of alienation, so long as he retained the debt.

There must be a sale of the mortgaged premises including the lot in Vandewater street, but with a reservation of ¡he junior right of the defendant F. to the proceeds of that lot. '

Decree accordingly.