Gabbert v. Schwartz

69 Ind. 450

• Court: Indiana Supreme Court
• Decided: May 15, 1880
• Status: Published

Opinion

Niblack, J.

The complaint in this case shows, that on the 20th day of January, 1876, the appellant George G. Gabbei’t executed to Thomas II. Butler and Alfred M. Alexander his promissory note for eight hundred dollars, payable six months after date at the Merchants National Bank of Indianapolis, and that, to secure the payment of such note, he and his wife, Christina Gabbert executed a mortgage on a lot in the City of Indianapolis, the separate property of the said Christina; that afterward, and before maturity, the note was assigned by Butler and Alexander to’the appellee, Charles L. Schwartz.

The object of this action was to obtain judgment against George G. Gabbert on the note, and to foreclose the mortgage against both him and his said wife, Christina.

Butler and Alexander and the Massachusetts Mutual Life Insurance Company, a prior incumbrancer, were also made defendants.

The defendant Christina answered separately, attacking the consideration of the note and averring that the note was executed without any good or valuable consideration, of all which the plaintiff had notice.

To this answer there was a reply in denial. A jury, at a special term, returned a verdict for the plaintiff; and, a motion for a new trial being first overruled, there was judgment upon the note, and a decree of foreclosure upon the mortgage. IJpon an appeal to the general term of the court below, the judgment at special term was affirmed.

The defendants, the Gabberts, have appealed to this court, and, arguing upon the theory that the evidence showed the note to have been executed without consideration, but without notice to the plaintiff, who was a bona fide purchaser before maturity, insist that a complete defence was made out for the defendant Christina, against the foreclosure of the mortgage, upon the ground that the mortgage, as to her, did not stand upon the same footing with the note as commercial paper, she not being a party to the note.

In 1 Jones on Mortgages, at section 11, it is said:

“ In equity a mortgage of laud is regarded as a mere security for a debt or obligation, which is considered as the principal thing, and the mortgage only as the accessory. The legál title vests in the mortgagee merely for the protection of his interest, and in order to give him the full benefit of the security; but for other purposes the mortgage is a mere security for the debt.”

This rule as to the essential qualities of a mortgage has been fully recognized and accepted in this State. Fletcher v. Holmes, 32 Ind. 497. With us, the debt secured is the principal thing, and the mortgage is but the incident. Sample v. Rowe, 24 Ind. 208; Garrett v. Puckett, 15 Ind. 485.

It follows that, in this State, the indorsee of a negotiable note, secured by mortgage, takes the mortgage discharged from all the equities to which the note may have been subject in the hands of the payee, to the same extent as the note itself is discharged from such equities.

In that respect, the indorsee takes the mortgage as he takes the note. Carpenter v. Long an, 16 Wal. 271; Logan v. Smith, 62 Mo. 455. The rule contended for by the appellants, as to defences against mortgages in cases like this, can not be maintained.

No error in the proceedings below has been shown.

The judgment is affirmed, with costs.