Opinion by PARKER, J.

JOHN A. MERRITT, RESPONDENT, v. HORACE BARTHOLICK, APPELLANT.

Mortgage-Delivery as Collateral-Effect on Assigned Bond.

The mere delivery of a mortgage, given to secure the payment of a bond, by the mortgagee to a creditor as collateral security for a debt owing by the mortgagee, does not pass any interest to the mortgage, as against one holding by assignment the bond secured thereby.

PARKER J.-If the delivery of the mortgage without the bond, to Wentworth as collateral security for the debt such delivery was intended to secure, operated as a valid assignment of the mortgage to Wentworth, the judgment below is wrong and cannot be sustained.

On the other hand, if it conveyed no interest in the mortgage to Wentworth, then the Defendant who claims his title through Wentworth's foreclosure of that mortgage, has no defence to the Plaintiff's action to foreclose, and no interest in respect to it which under the facts found by the referee can avail him upon this appeal.

The single question for consideration then is, did the delivery of the mortgage by Merritt, the mortgagee, to Wentworth, under the circumstances stated in the referee's report, operate to invest Wentworth with any interest in the mortgage?

The referee finds that, "On the 16th of July, 1853, or shortly thereafter, the bond and mortgage were assigned by the obligee and mortgagee therein named, to John Campbell, by assignment in writing, which was duly acknowledged and recorded on the 16th day of May, 1853. That prior to the assignment of said bond and mortgage to said Campbell, the mortgage was indebted to Henry T. Wentworth in the sum of $200, borrowed money; that Wentworth desired that said mortgage should be left with him as collateral security for said debt, and that the said Merritt delivered the said mortgage to said Wentworth according to such request, and as collateral security for said debt of $200; that the said mortgage was so delivered to said Wentworth before the same was assigned to said Campbell, but that the bond accompanying the same was

Opinion by PARKER, J.

not delivered to the said Wentworth at the time, nor was anything said about the same, nor is there any evidence that the same was ever delivered to said Wentworth, nor was there any writing executed in reference to such transfer."

As a mortgage is but an incident to the debt which it is intended to secure (Martin v. Mowlin, 2 Burr, 969; Green v. Hart, 1 John. R. 580; Jackson v. Blodgett, 5 Cow. 202; Jackson v. Bronson, 19 John. R. 325; Wilson v. Troop, 2 Cow. 231; Cooper v. King, 17 Abb. 342), the logical conclusion is, that a transfer of the mortgage without the debt is a nullity, and no interest is assigned by it. The security cannot be separated from the debt and exist independently of it. This is the necessary legal conclusion, and recognized as the rule by a long course of judicial decisions. (See cases above cited; also 4 John. R. 41, 5 John. Ch. R. 570; 9 Wend. 80.)

Unless, then, the bond was in effect assigned with the mortgage, Wentworth obtained no interest in the mortgage. Did the bond, or the debt which it evidenced, pass to Wentworth? In the first place, the transfer of the mortgage did not of itself operate to transfer the bond, for the legal maxim is, the incident shall pass by the grant of the principal, but not the principal by the grant of the incident. So that unless we are authorized to say that such was the intent of the parties, we cannot hold that it did. This is a question of fact, which the counsel for the Appellant argues in his points; but unless the referee has found it as a fact, or found facts from which we are bound to infer its existence, it is a question not in the province of this Court to determine.

The act done by Merritt, the mortgagee, was the delivery of the mortgage to Wentworth, and the purpose of the delivery was to secure the payment of the debt of the mortgagee to Wentworth. Does it necessarily follow that the intention of the parties was to transfer the bond? The referee has not found either way upon this question of intent, and therefore, unless the intent in question is to be inferred as a matter of legal necessity from what he does find, it must now be held not to have existed.

If the transfer had been by a written assignment, describing

Opinion by PARKER, J.

the mortgage alone, and expressing the object to be to secure the debt of the assignor to the assignee, nothing being said about the bond or the debt which it represents, and delivery of the mortgage made, it would be impossible, I think, to hold that the intention was to assign the bond. There would be no opportunity for an implication to that effect. The circumstance that the assignment would be inoperative unless the bond be held to pass, would not give the assignment that effect: The result of such holding would be to reverse the maxim, and make the principal follow the incident. To make the circumstance of its inefficacy a reason for giving it the effect desired, would manifestly uproot the maxim, and establish the contrary rule.

The fact that here the transfer was by manual delivery merely, nothing being said as to the bond or the indebtedness secured by it, does not afford any stronger evidence of the intent to transfer the bond than the case supposed; there is no circumstance in the case not considered in the supposed case; and, as I think, nothing to compel the inference of the intent to transfer the bond. I am unable to see, therefore, any escape from the conclusion that, upon this appeal, the judgment of the Supreme Court must be held correct, and affirmed.

Concurring, PORTER, BOCKES, DAVIES, and SCRUGHAM.

HUNT and GROVER for reversal.

Affirmed.

5

JOEL TIFFANY,

State Reporter.

Statement of the Case.

STEPHEN BRUSH, EXR., RESPONDENT, v. WILLIAM LEE ET AL. APPELLANTS.

Justice's Judgment-Docket-Execution-Issuable by Whom?

When the judgment of a Justice of a District Court has been docketed with the Clerk of the Court of Common Pleas, the attorney, and not the Clerk of the County, is the proper person to issue the execution.

IN March, 1860, one Edmonds moved a judgment in a district court of the city of New York, for about eighty dollars, against the Plaintiff's testator, for which an appeal was taken, but not the requisite steps to stay execution. A transcript of the judgment was docketed with the Clerk of the Court of Common Pleas, and an execution issued by A. B. Clark, an attorney for that court, to whom the judgment had been assigned by Edmonds to the sheriff of the city and county of New York, where the testator then resided, and where he had ample personal and real property to satisfy the same. Nothing was done by the sheriff upon this execution. A transcript of the judgment was shortly after docketed in Kings County, and an execution issued to the sheriff of the latter county by Defendant Niles, not an attorney, but a partner with Clark in the law business, in the name of Clark as attorney, upon which latter execution real estate in Brooklyn was levied upon and sold, and bid off by Edmonds for about one hundred dollars, being of the value over and above incumbrances thereon of about ten thousand dollars. The testator was entirely ignorant of the issue of either execution, and of. the sale of the property in Brooklyn, and continued to receive the rents of the property until his death, March 18, 1863. The testator believed that the necessary steps had been taken, and the execution stayed by the appeal. Edmonds, shortly after the sheriff's sale, sold the certificate of the sale to Defendant Lee, who paid therefor the amount of the bid; and the property not having been redeemed, either by the judgment debtor or any incumbrancer at the expiration of the time for that purpose, obtained a deed from the sheriff of the property sold, but which was not

Opinion by GROVER, J.

placed upon the records for some time thereafter. In the summer of 1863, the Plaintiff, to whom the property sold had been devised in trust, having learned the facts of the sale and conveyance by the sheriff, commenced this action to have the sale and conveyance adjudged void, for the reason that it was a cloud upon his title, basing his claim to such relief upon the ground that the execution was void, having been issued by the attorney; and that Niles had used the name of Clark in issuing the execution; and, also, that Niles and Lee had been guilty of fraud in issuing the execution, and concealing the sale and conveyance by the sheriff. The court, upon trial at Special Term, found as fact the Defendant Niles fraudulently concealed from the testator his acts in the premises, and that Defendant Lee was a party to such fraudulent concealment after becoming assignee of the certificate; and as conclusion of law, that the execution was void upon the ground that it was issued by the attorney of Plaintiff, and not by the clerk, and gave judgment declaring the sale and the sheriff's deed void, and ordering the cancellation of the same. The Defendants took several exceptions to the decision as to the findings of fact and of law, but no exception raising the point as a question of law that there was no evidence whatever of fraudulent concealment. After entry of judgment, the Defendants appealed to the General Term in the First District, and after affirmance by that Court appealed to this Court.

Barrett for Respondent.

Dyett for Appellant.

GROVER, J.-The Special Term erred in holding as a conclusion of law, that the execution should have been issued by the clerk, and not the party or his attorney. Sec. 68 of the Code, among other things, provides that section 55 to 64, both inclusive, shall apply to the Justices' Courts of the cities, with the following among other exceptions: And except also that in the city and county of New York a judgment of twenty-five dollars, or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same