Graham v. Newman , 21 Ala. 497 ( 1852 )

PHELAN, J.

— This was an action of detinue brought by Grabanr & Eogers against Newman for tbe recovery of a slave. Tbe action was brought in the name of Graham & Eogers for tbe use of McLemore.

To show title to tbe slave in question, the plaintiffs introduced a mortgage for said slave, executed by one Pinkston, bis owner, to the plaintiffs in May, 1845, to secure a note for $1000, given to them by Pinkston on tbe same day of tbe date of tbe mortgage.

This mortgage was afterwards assigned, by a written assignment under seal, regularly endorsed on said mortgage to one Solomon Thompson on 20th March, 1847, and S. Thompson having died, the mortgage with the note was regularly assigned in like manner by Wm. J. Thompson, administrator of S. Thompson, on 12th February, 1849, to McLemore.

The court instructed the jury, that the assignment by plaintiffs to Solomon Thompson conveyed the legal title in the slave to S. Thompson, and that plaintiffs could not maintain this action; and plaintiffs took a non-suit, and assign for error the charge of the court.

The instruction of the court was undoubtedly correct. The assignment of the note or bond it is intended to secure, unless there is some contract to the contrary, is an equitable as-sigment of a mortgage, and the assignee of the note can, in such case, use the name of the mortgagee to enforce the mortgage at law; but if the mortgage itself is assigned, in proper form, the legal title of the mortgagee passes by it to the as-signee, and in any proceeding at law to enforce the mortgage he must proceed in his own name.

If the mortgage is of land, to pass the legal title there must be a deed from the mortgagee to the assignee of the mortgaged premises, either on a separate paper, or endorsed on the mortgage deed, with suitable words to convey the thing itself. 15 Mass., 236; 10 ib., 476; 8 ib., 5; Halsted, 156; 27 Maine, 237; 2 Grreenleaf, 322.

But if the mortgage is of a personal chattel, as the mortgage itself may be by writing either under seal or not under seal, and as the deliveiy of the writing is but symbolical of the delivery of the chattel, the legal title will pass by an assignment by the mortgagee, as in this case, of “all right, title and interest in and to the within mortgage,” endorsed upon the written mortgage, and the assignee must sue in his own name to recover the chattel.

The same principle applies to every kind of assignment which passes the legal title. See Bullock v. Ogburn, 13 Ala., 347; 7 Ala., 525; 1 Stewart, 154.

There are other assignments of error, but they need not be noticed, as this error must always be fatal to the action.

Let the judgment be affirmed.