Feed Miller Brewing Co. v. Manasse

74 N.W. 535, 99 Wis. 99

• Court: Wisconsin Supreme Court
• Decided: March 22, 1898
• Status: Published

Opinion

Marshall, J.

The findings of fact are amply sustained by the evidence. The only question of law that need be decided is, Does a person become the bona fide holder of a note and mortgage by purchasing them for value, of another who has title thereto of record, while the same are in possession of a third person who received them as security from such other, and took title thereto for such purpose, by an assignment of the note in blank, and a delivery thereof, together with the mortgage, so as to cut off the rights of such third person? That must be answered in favor of the respondent in accordance with the decision of the trial court. A mortgage is not property at all independent of the debt it secures. The extinguishment of the debt ipso facto et eo in-stanti extinguishes the mortgage. The mere entry on the record of a release of the mortgage is not for the purpose of extinguishing it, but as evidence of a previous discharge of the debt. Martinecm v. McCollum, 3 Pin. 455; Croft v. Btmster, 9 Wis. 503; Kelley v. Whitney, 45 Wis, 110. In the •latter case, Mr. Justice Cole said, in effect, that it is the settled law of this state that the transfer of a note before maturity, secured by a mortgage, vests in the transferee the note, discharged of all equities of the former holder, and carries with it, as an incident thereto, the mortgage as well, discharged of equities in a like degree. It follows that the appellant took no greater title by her assignment of the mortgage than the interest which Thelen reserved when he transferred the securities to respondent. Its possession of the note and mortgage was- notice to the appellant and to all other persons dealing with the securities, of its interests therein.

By the Court.— The judgment of the superior court is affirmed.