Littlefield & Bro. v. Clary

Jacioon, Chief Justice.

The sole question made by this record is whether the court of ordinary had jurisdiction to establish a copy of' the lost mortgage under the act of 1876, codified in the supplement to the Code, §§420-1-2-3. The act of 1876-repealed that of 1866, codified in Code, §§3993-4-5. The effect is to transfer powers, granted generally to officers-who could administer an oath summarily to establish certain lost papers, to the ordinary. The words are the same in both cases, so far as they describe the lost papers, copies-of which may be established in this summary manner, and are “ any bond, note, bill, draft, check, or other evidence-of indebtedness.” The question is, are mortgages other evidences of debt in the meaning of this statute and that which it repeals and substitutes. A mortgage is “ a security for debt,” according to our Code, and not, strictly-speaking, a mere evidence of indebtedness. It is a deed,, defeasible if the debt be paid, but still a deed to secure the debt. It is very different from a-bond, bill, note, draft, or check, and not a mere evidence of debt. -It is a lien, it binds the property in it; and is a much more solemn and binding instrument than any simple “ evidence of indebtedness.” We think, therefore, that it was not the intention of the general assembly to embrace the establishment of a copy of such a paper in the loose and summary manner authorized by the act of 1866, and it is clear that the act of 1876 embraces only such evidences of debt as those meant in the act of 1866. The judgment of the -court below must, therefore, be affirmed.