Paige v. Chapman

58 N.H. 333

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1878
• Status: Published

Opinion

Allen, J.

Negotiable paper, received for value, before maturity, in the ordinary course of business, without notice of infirmity, is, in the hands of a purchaser, freed from defences by the maker. The same is true when the paper is received and held as collateral security. Tucker v. Savings Bank, ante, 83. A mortgage is incident to the debt secured by it, and a transfer of the note or other evidence of debt carries the mortgage with it. Wheeler v. Emerson, 45 N. H. 527. Any defences, open to the maker in a suit on the note, may be made use of in an action on the mortgage. Northy v. Northy, 45 N. H. 141. The mortgage follows the debt as a shadow does its object, and cannot exist without it. Whoever holds the evidence of debt holds the mortgage security, and payment of the debt extinguishes the mortgage. The debt is the principal thing, and imparts its character to the mortgage, and the legal rights and remedies upon the debt become fixed upon its incident, the mortgage. Defences, which cannot be made against the note because it has travelled away from them, cannot be made against the mortgage which has kept company with the note. The freedom from infirmity, which the innocent purchaser and holder of the note enjoys, cannot be destroyed or made less by taking with the note a mortgage made and intended as security. The plaintiff received the note and mortgage in good faith, before the debt had matured, and with no notice of defect or defence. The defence sought to be set up cannot be made. Carpenter v. Longan, 16 Wall. 271; Taylor v. Page, 6 Allen 86; Sprague v. Graham, 29 Me. 160; Pierce v. Faunce, 47 Me. 507; Gould v. Marsh, 1 Hun (N. Y.) 566; Jones on Mort. 834, 835, 840.

Case discharged.

Bingham, J., did not sit.