Merritt v. Bartholick

New York Supreme Court

Merritt v. Bartholick

47 Barb. 253, 1866 N.Y. App. Div. LEXIS 123

DecidedMarch 5, 1866

StatusPublished

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Bluebook

Merritt v. Bartholick, 47 Barb. 253, 1866 N.Y. App. Div. LEXIS 123 (N.Y. Super. Ct. 1866).

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Opinion

By the Court, Johnson, J.

The case of Cooper v. King (17 Abb. 342,) decided in this district, covers this case completely, and is decisive of it, unless we are prepared to overrule that decision. This we shall not do. The delivery of the mortgage to Wentworth, without the bond, to hold as security for the $200, gave him no interest in it. The assignment of a mortgage without the accompanying bond, whether 'by writing or parol, and as collateral or otherwise, is a nullity, and the assignee acquires no interest; especially as against a subsequent asssignee of both the bond and mortgage. It is claimed on the part of the defendants, that the assignment by parol, of the mortgage to Wentworth, and its delivery to secure the payment of'the borrowed money, carried with it the bond also, unless the latter was expressly reserved. But such is not the rule in this' state. The bond is the principal debt, and the mortgage but the incident or collateral to it; and it was never held that the assignment of the incident or collateral drew after it the principal. ' It has been repeatedly held that the assignment of the bond or note, being the principal debt, would draw after it the mortgage, and operate as an assignment of that, also. It is also claimed that the delivery of the mortgage as a security for a' debt, is conclusive evidence of an intention to pass the bond also. But this does not follow. The fact that the obligee retained it in his own possession, and delivered only the mortgage, and subsequently assigned the bond and mortgage both, in writing, to another, clearly evinces a contrary intention from that claimed.

The judgment must therefore be affirmed, with costs.

Welles, E. D. Smith and Johnson, Justices.]

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By the Court, Johnson, J.

The case of Cooper v. King (17 Abb. 342,) decided in this district, covers this case completely, and is decisive of it, unless we are prepared to overrule that decision. This we shall not do. The delivery of the mortgage to Wentworth, without the bond, to hold as security for the $200, gave him no interest in it. The assignment of a mortgage without the accompanying bond, whether 'by writing or parol, and as collateral or otherwise, is a nullity, and the assignee acquires no interest; especially as against a subsequent asssignee of both the bond and mortgage. It is claimed on the part of the defendants, that the assignment by parol, of the mortgage to Wentworth, and its delivery to secure the payment of'the borrowed money, carried with it the bond also, unless the latter was expressly reserved. But such is not the rule in this' state. The bond is the principal debt, and the mortgage but the incident or collateral to it; and it was never held that the assignment of the incident or collateral drew after it the principal. ' It has been repeatedly held that the assignment of the bond or note, being the principal debt, would draw after it the mortgage, and operate as an assignment of that, also. It is also claimed that the delivery of the mortgage as a security for a' debt, is conclusive evidence of an intention to pass the bond also. But this does not follow. The fact that the obligee retained it in his own possession, and delivered only the mortgage, and subsequently assigned the bond and mortgage both, in writing, to another, clearly evinces a contrary intention from that claimed.

The judgment must therefore be affirmed, with costs.

Welles, E. D. Smith and Johnson, Justices.]

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Bluebook (online)

47 Barb. 253, 1866 N.Y. App. Div. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merritt-v-bartholick-nysupct-1866.