Seevers, Ci-r. J.
1. MORTGAGE: promissory note: assignment. I. That the judgment rendered by the Circuit Court on the note is correct all the authorities eoncede* Put on the remaining and only question hr the case, the same uniformity does not exist, It is agreed, however, on all hands that the note is the principal thing and the mortgage the incident, and that the assignment of the note carries with it the mortgage. It would, therefore, seem necessarily to follow, if the title and right of the assignee to obtain judgment on the note exists, so [551]*551must liis right to have a foreclosure of the mortgage given as security for the payment of the note. It is certainly true, if the maker of the note and mortgage receives value for them, the assignment of the note carries with it the mortgage and all the rights attaching thereto. The right of the assignee to avail himself of the mortgage exists through the transfer of the note, and does not depend upon the question of consideration. The rule adopted by the Circuit Court gives more force and potency to the incident than to the principal. The note remains in full force and vigor, but the mortgage, which makes the note of practical value, or a something more than an empty show, void.
This question was before the Supreme Court of the United State in Carpenter v. Longan, 16 Wall., 273, in deciding which the following language is used: “The assignee takes the mortgage as he takes the note, free from the objections to which it is liable in the hands of the mortgagee.” With great deference to the learned courts which have ruled differently, we think this the better rule and therefore adopt it.
3.____: homestead: innocent purchaser II. The fact that the defendant is a widower, the head of a family and the mortgage on his homestead, can make no difference. If value had been received for the note anc^ mortgage, still unless the right to mortgage the homestead for the payment of the debt existed, the mortgage would have been void. The converse of this proposition must be true, that is, if the right existed and the homestead mortgaged, it is immaterial whether value or any consideration was received or not. The homestead right exists independent of any such question, under and by virtue of the statute.
Eeversed.
Free access — add to your briefcase to read the full text and ask questions with AI