Jackson ex dem. Curtis v. Bronson — 19 Johns. 325

Majority

p. 325

Jackson, ex dem. Curtis, against Bronson.

Headnote

a mortgagor maintain eject™ie’ltgtantee'of thc mortsa£ee

EJECTMENT for land in Onondaga, tried before Mr. Justice Yates, at the Onondaga circuit, in June, 1821. The lessor of the plaintiff proved a title under Abijah Earl, for a lot of 60 acres, by a deed to him, dated 3d of March, 1801, duly recorded on the same day, and that the defendant was in possession of six acres of the land. The defendant proved a mortgage from Curtis to Earl, dated March, 1801, of the whole lot to secure payment to the state of 405 dollars and 62 cents, and to indemnify Earl. Also, a deed from Earl to the defendant for the premises in question, dated 5th of June, 1804. A verdict was taken for the plaintiff, subject to the opinion of the Court, on a case, which was submitted to the Court, without argument

It is now well settled, that the mortgagee has a mere chattel interest: and the mortgagor is considercd as the proprietor of the freehold. The mortgage is-deemed a mere incident to the bond or personal security. for the debt; and the assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered in law as a nullity.

In the case of Runyan v. Mersereau, ( 11 Johns. Rep. 534 .) it was decided that the, mortgagor, or a purchaser of the equity of redemption, may maintain tresspass against the mortgagee,. or a person acting under his license. There the defendant pleaded liberum tenementum;. and the plaintiff (the purchaser of the equity of redemption) replied, that, the freehold was in himself; and there was judgment for the plaintiff., Here, the question is, whether Curtis, the mortgagor, can maintain an ejectment against Bronson, who appears as a grantee, by deed in fee simple, under the mortgagee.

We are of opinion that the plaintiff is entitled to judgment.

Judgment for the plaintiff.