Jackson ex dem. Curtis v. Bronson

19 Johns. 325

• Court: New York Supreme Court
• Decided: January 15, 1822
• Status: Published

Opinion

Per Curiam.

It is now well settled, that the mortgagee has a mere chattel interest: and the mortgagor is considercd as the proprietor of the freehold. The mortgage is-deemed a mere incident to the bond or personal security. for the debt; and the assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered in law as a nullity.

In the case of Runyan v. Mersereau, (11 Johns. Rep. 534.) it was decided that the, mortgagor, or a purchaser of the equity of redemption, may maintain tresspass against the mortgagee,. or a person acting under his license. There the defendant pleaded liberum tenementum;. and the plaintiff (the purchaser of the equity of redemption) replied, that, the freehold was in himself; and there was judgment for the plaintiff., Here, the question is, whether Curtis, the mortgagor, can maintain an ejectment against Bronson, who appears as a grantee, by deed in fee simple, under the mortgagee.

We are of opinion that the plaintiff is entitled to judgment.

Judgment for the plaintiff.