Thayer v. Campbell

• Decision Date: 31 July 1845
• Citation: 9 Mo. 280
• Parties: THAYER, ASSIGNEE OF HENNING, v. ISAAC R. CAMPBELL ET AL.
• Court: Missouri Supreme Court

9 Mo. 280

THAYER, ASSIGNEE OF HENNING,

v.ISAAC R. CAMPBELL ET AL.

Supreme Court of Missouri.

July Term, 1845.

ERROR TO CLARK.

LEONARD & BAY, for Plaintiff. 1. The mortgage was given to secure the payment of several demands, and the interest of the mortgagees being several, each had a right to enforce his claim under the mortgage. Burnett v. Pratte et al., 22 Pickering, 556. The mortgagees were tenants in common. Statute of 1835, concerning Conveyances, § 6, p. 119. 2. The mortgagees, Palmer and Lovering, were properly made parties defendants. Had the plaintiff filed his bill in equity to foreclose instead of proceeding under the statute he would have been compelled to make the other mortgagees defendants, upon the acknowledged rule in equity, that all having an interest in the subject-matter, must be made parties. Is the rule different in a suit under the statute? This is not considered a common law proceeding, but rather an equitable proceeding, regulated by statute. Wilson et al. v. Bruffee. Adm'r, 6 Mo. R. 635. It certainly was the intention of the statute to make all persons in interest parties. See statute of 1835, concerning Mortgages, p. 409. The statute was not intended for the benefit of a certain class of cases only, but as a salutary regulation of proceedings to foreclose mortgages generally. 3. The statute concerning Mortgages, does not in any respect change the law as it existed previous thereto, but is cumulative. The act was intended to facilitate the remedy, leaving to the mortgagor his right to proceed in equity. The act should therefore receive a liberal construction. so as to carry out the intention of the Legislature.

C. WELLS, for Defendant. The defendant in error insists, 1. That the mortgage cannot be assigned either at law or in equity, without assigning the debt which it was made to secure. 2. The assignee of a mortgage cannot sue at law. 3. At law all the mortgagees must sue. See the statute of 1839, p. 87. Rules of common law can alone be applied. See §§ 13, 14, p. 87

SCOTT, J.^a1

Campbell, the defendant in error, executed a mortgage on real and personal estate, to secure three several distinct debts which he owed to James S. Henning, and two others. Henning assigned his interest in the mortgage to Thayer, the plaintiff, by a writing indorsed on the mortgage, in these words: “For and in consideration of the sum of five hundred and sixty-eight dollars and twenty-seven cents, it being a note held by him against me for that sum, dated November 22nd, 1842, and due six months from date, I assign all my interest in the within mortgage to Martin Thayer. All collected over said amount to be paid to me.” The mortgage recited that Campbell was indebted to Henning in the sum of $597 87 by judgment,and the sum of $26 32 by bond. Thayer filed a petition under the statute to foreclose Campbell's equity of redemption and made the two other mortgagees defendants in the suit. To this petition there was a demurrer, which was sustained by the court below, and judgment entered against the plaintiff, to reverse which he has prosecuted this writ of error.

In support of the judgment rendered in the court below, the defendants in error rely on four grounds, viz: 1. That an assignment of a mortgage cannot be effected without an assignment of the debt, whose payment is thereby secured. 2. The assignee of the bare mortgage cannot sue at law. 3. That all the mortgagees should have joined in the suit. 4. That the other mort gagees were improperly made parties defendant, this being a statutory proceeding according to the course of the common law, and not a proceeding in conformity to the course and practice adopted by courts of chancery.

The doctrine is asserted in the books that the assignment of a mortgage is regarded as a nullity. Wilson v. Troup, 2 Cowen, 195. This, however, must be intended of cases in which the mortgage alone is assigned, and in which it was the intention of the parties that nothing but the mortgage, disconnected from the debt whose payment was secured by it, should pass. It cannot be applied to cases in which although an assignment of the mortgage is in terms made, yet it is clear from the transaction, that the debt was likewise designed to be transferred. No form of words is exclusively appropriated to create an assignment of a debt. The contract of assignment is to be construed like all other contracts, and as in them, the intention of the parties must prevail, so in this. The assignment indorsed on the mortgage clearly shows that it was designed to transfer as well the debt as the interest in the land. The greater portion of the debt recited in the mortgage, and secured by it, was due on a judgment. It was not evidenced by a bond or note--things capable of delivery. In what more authentic manner could an assignment of a judgment have been effected? There is no foundation in reason or policy for narrowing the construction of the statute allowing an assignee of a debt secured by a mortgage to bring a petition to foreclose the equity of redemption in his own name, to those cases only in which the assignee of a debt could sue at law for its collection. It must have been in the contemplation of the Legislature that mortgages are frequently executed to secure the payment of debts whose existence cannot be shown by note or specialty.^(a)

The second reason urged in support of the demurrer has been answered by what has been said in relation to the first. Considering the purposes for which the mortgage was given, we cannot see the necessity or propriety of all the mortgagees uniting as plaintiffs in this suit. Although there is but a single deed of conveyance, yet when we consider that it was executed to secure three several and distinct debts, due to three several individuals, it must be regarded as clearly several in its nature as if those several instruments had been simultaneously executed. A conveyance of interest in land to several, by one instrument, does not necessarily make those interests joint. It is said, though a man covenant with two or more jointly, yet if the interest and cause of action of the covenantees be several and not joint, the covenant shall be taken to be several, and each of the covenantees may bring an action in his own name for his particular damage, notwithstanding the words of the covenant are joint. 1 Saund. 154. In the case of Burnett v. Pratt, 22 Pick., the court held it clear that if a mortgage is given to two or more persons to secure their several debts, the mortgage is several and not joint. That each mortgagee has a right to enforce his claim under the mortgage. If the debts...