Warren v. Homestead

33 Me. 256

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1851
• Status: Published

Opinion

Howard, J., orally.

— The demandant, in order to recover, must prove title in himself. The authority to sell, granted to the assignee in bankruptcy, was limited to the property set forth in the schedule of assets. That schedule exhibited no rights in the Lancey mortgage. The sale to the demandant of such rights was invalid.

Again, the 15th section of the bankrupt law requires, that in every deed of land made by the assignee, there shall be inserted a copy of the decree of bankruptcy and of the appointment of the assignee. The deed under which the demandant claims, so far as relates to rights under the mortgage, was ineffectual. •

There was in the schedule, an item of 146 notes. Whether the Lancey notes were among them, does not appear. The assignee, however, in his deed to the demandant undertook to convey them. But, even if title to them was thereby communicated, it cannot support an action at law for the land. The mere selling of a note does not assign the mortgage, which secures it. Without such an assignment, the purchaser takes, in the land, no rights enforceable at law. It is at equity only, that land-rights, acquired by such a purchase, can be vindicated.

Exceptions overruled.