Byles v. Tome

Robinson, J., delivered the opinion of the Court. Arthur Crisfield being indebted to S. N. Ware, in the sum of six thousand and five hundred dollars, on account of the purchase of a tract of land called ICTusculum,” executed his single bill, dated January 1st, 1867, for the payment of the same, one year after date thereof. On the 28th of January, Crisfield and wife mortgaged said property to secure the payment of said single bill— the mortgage reciting upon its face the single bill as the consideration of the same. On the 6th of April, 1867, Ware assigned and delivered the single bill and mortgage to John W. Crisfield, who, on the 25th of August, 1869, assigned and delivered the same to Jacob Tome, as collateral security for an indebtedness to said Tome.* The mortgage was assigned in writing, but the assignment was .not recorded. ⁴⁶³ On the 10th of December, 1870, John W. Crisfield, by an assignment duly executed and recorded, assigned $4500 of the above mortgage to S. N. Ware, who was the original mortgagee, and on the 13th of March, 1871, Ware by an assignment, also duly executed and recorded, assigned the same to Byles, the appellant.

The mortgaged premises were sold under a decree to foreclose an older mortgage, and the surplus fund after satisfying the older mortgage, is claimed by Tome under his assignment of the mortgage debt, and of the mortgage itself, and by Byles under a subsequent assignment of the mortgage, upon the ground that the assignment of the mortgage to Tome, was not recorded. The single question presented, is whether it is necessary that an assignment of a mortgage should be recorded to entitle a prior assignee of the mortgage debt and mortgage, to the lien intended to be secured thereby, as against a subsequent assignee of the mortgage, claiming under an assignment executed and recorded ? It is a well recognized rule in Equity, that an assignment of a debt secured by a mortgage, operates as an assignment of the mortgage. It is not necessary in such cases, that there should be an assignment of the mortgage, to entitle the assignee to the benefit of the same, and where an assignment is made, there is no reason why it should be recorded.

In Equity the mortgage is but a security of the debt, and the assignment of the latter, necessarily carries with it the former, unless there is some statutory provision in this State, contravening this well established rule in Equity, the right of Tome, as prior assignee to the surplus fund not only as against the assignor, but all subsequent assignees, is too clear for argument. The appellant, however, contends that under the Act of 1868, cli. 373, it was necessary that the