Bloomingdale v. Bowman — 21 N.Y. St. Rep. 247

Majority

p. 247

Phebe M. Bloomingdale, Resp’t, v. John W. Bowman, App’lt.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Mortgage—Bond—Transfer of mortgage without transfer of bond is a NULLITY.

Collaterals cannot be separated from the principal debt, and the transfer of a mortgage which is the mere incident of the bond, without the transfer of the" bond is a nullity. It is impossible to convey any title to a mortgage independent of the bond.

Appeal from a judgment of special term in favor of plaintiff.

P. C. Cantine, for app’lt; I. N. Miller, for resp’t.

The facts found by the learned court below are that, in 1885, one George D. Baker, by deed conveyed to Louis F. Reed, trustee, etc. , certain property in New Jersey, and that at the same time Reed, as trustee. as aforesaid, to secure to Baker the payment of $8,500, part of the purchase-price of said premises, executed and delivered to said Baker a bond conditioned for the payment

p. 248

of the same, and a mortgage as security for the payment of the bond. In November, 1885, Louis F. Reed, as trustee, conveyed the premises above mentioned to John A. Bowman, the defendant, who assumad the payment of the above mortgage. In June, 1886, Baker assigned, under his hand and seal, the said mortgage to the plaintiff, but did not assign the bond therein recited and referred to. The plaintiff commenced this action to recover the amount of said, mortgage from the defendant, as grantee of Reed; and in the court below, judgment was rendered in favor of the plaintiff, and from such judgment this appeal is taken.

We do not see how the judgment in question can be maintained. By the assumption clause contained in the deed to Bowman, if such deed was executed by him, he became liable to the owner of the mortgage debt for the amount of this mortgage; and by the transfer of the mortgage alone, unaccompanied by the bond, the plaintiff did not become the owner of the mortgage debt. It is a well settled rule that collaterals cannot be separated from the principal debt. And it has been distinctly held by the court of appeals, in the case of Merritt v. Bartholick ( 36 N. Y., 44 ), that the transfer of a mortgage without the transfer of the debt is a nullity. It hardly needs the citation of authority to support this proposition. That a mortgage is a mere incident to the bond has long been recognized by the courts, and the impossibility of conveying any title thereto, independent of the bond, well recognized.

If such were not the fact, we would have the obligor of a bond and the mortgagor in a mortgage to secure the payment of this bond obligated to two persons to pay the same debt. As the bond is the principal security, and the mortgage is a mere incident annexed to the bond, it is clear that the mortgage cannot be separated therefrom and a title thereto conveyed.

For these reasons the judgment must be reversed and a new trial ordered, with costs to appellants to abide event.

Daniels and Bartlett, JJ., concur.