The decree rendered by the Judge in the Court below was correct. The deed from Perry to plaintiff operated as an assignment of the mortgage from Thayer to Perry. A mortgage may be assigned by deed executed by the mortgagor, and recorded. 7 Cowen, 9. 4 Pick. 505. 14 Ibid. 374. 15 Ibid. 82.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., and Bryan, J., concurred.
OPINION
HEYDENFELDT, Judge
The mortgage from Thayer to Perry was upon record, and operated as constructive notice to all persons. It was unsatisfied, and therefore it was the subject of sale to all innocent parties.
The purchaser of the mortgage cannot be charged with constructive notice of anything subsequent to the mortgage, except its assignment, or satisfaction, duly entered of record.
The deed from Perry to plaintiff could not operate as an assignment of the mortgage. The latter is a mere security for the debt, and cannot pass without a transfer of the debt; so it would seem that the two transactions are totally different in character: the intent of the one is to convey the title to land; of the other, to transfer a debt with its security. If a contrary doctrine was maintained, it would produce the evil (as in this case) of enabling a net to be thrown for the entrapment of the innocent. The law always must favor the principle, that what is intended to be done, must be done directly.
Two cases are cited by the respondent's counsel, which seem to point to a different conclusion. I have examined them, and find them unsustained by authority or by the best reasoning. 14 Pick. 374, and 15 Ibid. 82.
The result of our judgment is, that the decree must be reversed, and the cause remanded.
This case cited as authority for the proposition, often reiterated in subsequent cases, that a mortgage is a mere incident of the debt, does not carry the title, and is barred and extinguished by anything that will bar or extinguish the debt. McMillan v. Richards , 9 Cal. 410;
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