Parmelee v. Dann , 1856 N.Y. App. Div. LEXIS 130 ( 1856 )

By the Court, Welles, J.

The point principally insisted upon by the counsel for the appellant, upon the argument, was that the plaintiffs had not acquired title to the cause of action for which they recovered judgment. I have not been able to find a case parallel with this in its facts and circumstances, and yet it is difficult, I think, to distinguish it in principle from a class of cases quite numerous in the books. It is entirely clear that where a debt is assigned, the assignment carries with it all the collateral securities, held by the assignor, for its collection, although they are not mentioned or referred to in the assignment ; upon the ground that in such cases the securities are incidents to the debt, which is the principal. Hence, where one holds a note or bond against another, secured by mortgage upon real or personal property, and afterwards assigns the bond or note, or a judgment recovered upon it, to a third person, without any reference to the mortgage, the assignment of the debt, whether in its original form, or merged in a judgment, carries with it the mortgage. (Langdon v. Buel, 9 Wend. 80.) So where A lent B a sum of money, which B borrowed for the use of himself and G, his partner, and which was used in the business of the partnership, and B gave A his individual note for the money, which note A afterwards sold and transferred to D, it was held that the assignment of the note carried with it all the rights and remedies which A had previous to the transfer, respecting the money loaned, among which was the right of action against B & C, as partners, to recover the money for whose use it was borrowed and applied. (Rose v. Baker & Perkins, 13 Barb. 230.)

The present case, I apprehend, should be determined the same as if Merriam and Shaddock had sold and assigned to the plaintiffs the wheat in the ground, with all their rights and interests appurtenant thereto. That would be the effect of the sheriff’s sale, and the chattel mortgage sale. Among those was the right to enter the defendant’s land and premises and take off the wheat when ripe. That right would pass upon a simple sale of the wheat growing, as incident or accessary to the interest in the crop, under the agreement. The defendant by his agreements with Merriam and Shaddock, was bound to keep the fences in repair, and I incline to the opinion that it was a duty upon him, and rights were acquired by Merriam and Shaddock, the benefits of which were transferred to the plaintiffs by the same process which vested them with the title to the wheat. They were rights and duties incident exclusively, quoad the parties, to the crops of wheat, and by a severance of the one from the other, the incident would be destroyed.

[Monroe General Term, December 1, 1856.

Upon the whole, I think no rule of law has been violated, and that the judgment should be affirmed.

Ordered accordingly.

T. R. Strong, Welles and Smith, Justices.]