1. The assignment of a negotiable note before its maturity
raises the presumption of a want of notice of any defense to it,
and this presumption stands till it is overcome by sufficient
proof.
2. When a mortgage given at the same time with the execution of
a negotiable note and to secure payment of it, is subsequently, but
before the maturity of the note, transferred
bona fide for
value, with the note, the holder of the note when obliged to resort
to the mortgage is unaffected by any equities arising between the
mortgagor and mortgagee subsequently to the transfer, and of which
he, the assignee, had no notice at the time it was made. He takes
the mortgage as he did the note.
MR. JUSTICE SWAYNE stated the case, and delivered the opinion of
the Court.
On the 5th of March, 1867, the appellee, Mahala Longan, and
Jesse B. Longan, executed their promissory note to Jacob B.
Carpenter, or order, for the sum of $980, payable six months after
date, at the Colorado National Bank, in Denver City, with interest
at the rate of three and a half percent per month until paid. At
the same time Mahala Longan executed to Carpenter a mortgage upon
certain real estate
Page 83 U. S. 272
therein described. The mortgage was conditioned for the payment
of the note at maturity, according to its effect.
On the 24th of July, 1867, more than two months before the
maturity of the note, Jacob B. Carpenter, for a valuable
consideration, assigned the note and mortgage to B. Platte
Carpenter, the appellant. The note not being paid at maturity, the
appellant filed this bill against Mahala Longan, in the District
Court of Jefferson County, Colorado territory, to foreclose the
mortgage.
She answered and alleged that when she executed the mortgage to
Jacob B. Carpenter, she also delivered to him certain wheat and
flour, which he promised to sell, and to apply the proceeds to the
payment of the note; that at the maturity of the note she had
tendered the amount due upon it, and had demanded the return of the
note and mortgage and of the wheat and flour, all which was
refused. Subsequently she filed an amended answer, in which she
charged that Jacob B. Carpenter had converted the wheat and flour
to his own use, and that when the appellant took the assignment of
the note and mortgage, he had full knowledge of the facts touching
the delivery of the wheat and flour to his assignor. Testimony was
taken upon both sides. It was proved that the wheat and flour were
in the hands of Miller & Williams, warehousemen, in the City of
Denver, that they sold, and received payment for, a part, and that
the money thus received and the residue of the wheat and flour were
lost by their failure. The only question made in the case was, upon
whom this loss should fall, whether upon the appellant or the
appellee. The view which we have taken of the case renders it
unnecessary to advert more fully to the facts relating to the
subject. The district court decreed in favor of the appellant for
the full amount of the note and interest. The supreme court of the
territory reversed the decree, holding that the value of the wheat
and flour should be deducted. The complainant thereupon removed the
case to this Court by appeal.
It is proved and not controverted that the note and mortgage
were assigned to the appellant for a valuable consideration
Page 83 U. S. 273
before the maturity of the note. Notice of anything touching the
wheat and flour is not brought home to him.
The assignment of a note underdue raises the presumption of the
want of notice, and this presumption stands until it is overcome by
sufficient proof. The case is a different one from what it would be
if the mortgage stood alone, or the note was nonnegotiable, or had
been assigned after maturity. The question presented for our
determination is, whether an assignee, under the circumstances of
this case, takes the mortgage as he takes the note, free from the
objections to which it was liable in the hands of the mortgagee. We
hold the affirmative. [
Footnote
1] The contract as regards the note was that the maker should
pay it at maturity to any
bona fide endorsee, without
reference to any defenses to which it might have been liable in the
hands of the payee. The mortgage was conditioned to secure the
fulfillment of that contract. To let in such a defense against such
a holder would be a clear departure from the agreement of the
mortgagor and mortgagee, to which the assignee subsequently, in
good faith, became a party. If the mortgagor desired to reserve
such an advantage, he should have given a nonnegotiable instrument.
If one of two innocent persons must suffer by a deceit, it is more
consonant to reason that he who "puts trust and confidence in the
deceiver should be a loser rather than a stranger." [
Footnote 2]
Upon a bill of foreclosure filed by the assignee, an account
must be taken to ascertain the amount due upon the instrument
secured by the mortgage. Here the amount due was the face of the
note and interest, and that could have been recovered in an action
at law. Equity could not find that
Page 83 U. S. 274
less was due. It is a case in which equity must follow the law.
A decree that the amount due shall be paid within a specified time,
or that the mortgaged premises shall be sold, follows necessarily.
Powell, cited
supra, says:
"But if the debt were on a negotiable security, as a bill of
exchange collaterally secured by a mortgage, and the mortgagee,
after payment of part of it by the mortgagor, actually negotiated
the note for the value, the endorsee or assignee would, it seems,
in all events, be entitled to have his money from the mortgagor on
liquidating the account, although he had paid it before, because
the endorsee or assignee has a legal right to the note and a legal
remedy at law, which a court of equity ought not to take from him,
but to allow him the benefit of on the account."
A different doctrine would involve strange anomalies. The
assignee might file his bill and the court dismiss it. He could
then sue at law, recover judgment, and sell the mortgaged premises
under execution. It is not pretended that equity would interpose
against him. So if the aid of equity were properly invoked to give
effect to the lien of the judgment upon the same premises for the
full amount, it could not be refused. Surely such an excrescence
ought not to be permitted to disfigure any system of enlightened
jurisprudence. It is the policy of the law to avoid circuity of
action, and parties ought not to be driven from one forum to obtain
a remedy which cannot be denied in another.
The mortgaged premises are pledged as security for the debt. In
proportion as a remedy is denied the contract is violated, and the
rights of the assignee are set at naught. In other words, the
mortgage ceases to be security for a part or the whole of the debt,
its express provisions to the contrary notwithstanding.
The note and mortgage are inseparable; the former as essential,
the latter as an incident. An assignment of the note carries the
mortgage with it, while an assignment of the latter alone is a
nullity. [
Footnote 3]
Page 83 U. S. 275
It must be admitted that there is considerable discrepancy in
the authorities upon the question under consideration.
In
Baily v. Smith [
Footnote 4] -- a case marked by great ability and fullness
of research -- the Supreme Court of Ohio came to a conclusion
different from that at which we have arrived. The judgment was put
chiefly upon the ground that notes, negotiable, are made so by
statute, while there is no such statutory provision as to
mortgages, and that hence the assignee takes the latter as he would
any other chose in action, subject to all the equities which
subsisted against it while in the hands of the original holder. To
this view of the subject there are several answers.
The transfer of the note carries with it the security, without
any formal assignment or delivery, or even mention of the latter.
If not assignable at law, it is clearly so in equity. When the
amount due on the note is ascertained in the foreclosure
proceeding, equity recognizes it as conclusive, and decrees
accordingly. Whether the title of the assignee is legal or
equitable is immaterial. The result follows irrespective of that
question. The process is only a mode of enforcing a lien.
All the authorities agree that the debt is the principal thing
and the mortgage an accessory. Equity puts the principal and
accessory upon a footing of equality, and gives to the assignee of
the evidence of the debt the same rights in regard to both. There
is no departure from any principle of law or equity in reaching
this conclusion. There is no analogy between this case and one
where a chose in action standing alone is sought to be enforced.
The fallacy which lies in overlooking this distinction has misled
many able minds, and is the source of all the confusion that
exists. The mortgage can have no separate existence. When the note
is paid the mortgage expires. It cannot survive for a moment the
debt which the note represents. This dependent and incidental
relation is the controlling consideration, and takes the case out
of the rule applied to choses in action,
Page 83 U. S. 276
where no such relation of dependence exists.
Accessorium non
ducit, sequitur principale.
In
Pierce v. Faunce, [
Footnote 5] the court said:
"A mortgage is
pro tanto a purchase, and a
bona
fide mortgagee is equally entitled to protection as the
bona fide grantee. So the assignee of a mortgage is on the
same footing with the
bona fide mortgagee. In all cases
the reliance of the purchaser is upon the record, and when that
discloses an unimpeachable title he receives the protection of the
law as against unknown and latent defects."
Matthews v. Wallwyn [
Footnote 6] is usually much relied upon by those who
maintain the infirmity of the assignee's title. In that case, the
mortgage was given to secure the payment of a nonnegotiable bond.
The mortgagee assigned the bond and mortgage fraudulently and
thereafter received large sums which should have been credited upon
the debt. The assignee sought to enforce the mortgage for the full
amount specified in the bond. The Lord Chancellor was at first
troubled by the consideration that the mortgage deed purported to
convey the legal title, and seemed inclined to think that might
take the case out of the rule of liability which would be applied
to the bond if standing alone. He finally came to a different
conclusion, holding the mortgage to be a mere security. He said,
finally:
"The debt therefore is the principal thing, and it is obvious
that if an action was brought on the bond in the name of the
mortgagee, as it must be, the mortgagor shall pay no more than what
is really due upon the bond; if an action of covenant was brought
by the covenantee,
the account must be settled in that
action. In this Court, the condition of the assignee cannot be
better than it would be at law in any mode he could take to recover
what was due upon the assignment."
The principle is distinctly recognized that the measure of
liability upon the instrument secured is the measure of the
liability chargeable upon the security. The condition of the
assignee cannot be better in law than it is in equity.
Page 83 U. S. 277
So neither can it be worse. Upon this ground we place our
judgment.
We think the doctrine we have laid down is sustained by reason,
principle, and the greater weight of authority.
Decree reversed and the case remanded with directions to
enter a decree in conformity with this opinion.
[
Footnote 1]
Powell on Mortgages 908; 1 Hilliard on Mortgages 572; Coot on
Mortgages 304;
Reeves v. Scully, Walker's Chancery 248;
Fisher v. Otis, 3 Chandler 83;
Martineau v.
McCollum, 4
id. 153;
Bloomer v. Henderson, 8
Mich. 395;
Potts v. Blackwell, 4 Jones 58;
Cicotte v.
Gagnier, 2 Mich. 381;
Pierce v. Faunce, 47 Me. 507;
Palmer v. Yates, 3 Sandford 137;
Taylor v. Page,
6 Allen 86;
Croft v. Bunster, 9 Wis. 503;
Cornell v.
Hilchens, 11
id. 353.
[
Footnote 2]
Hern v. Nichols, 1 Salkeld 289.
[
Footnote 3]
Jackson v. Blodget, 5 Cowan 205;
Jackson v.
Willard, 4 Johnson 43.
[
Footnote 4]
14 Ohio St. 396.
[
Footnote 5]
47 Me. 513.
[
Footnote 6]
4 Vesey 126.