
    John Crain vs. Luther Paine.
    A mortgagee of personal property may make an equitable assignment of his mortgage, which courts of law will take notice of and protect, by a delivery of the deed and note to the assignee, without writing, for a valuable consideration.
    An equitable assignee of a mortgage of personal property may maintain an action of trover for the conversion of such property, in the name of the assignor.
    If a note, secured by a mortgage of personal property, becomes barred by the stat ute of limitations, the mortgagee’s title to the property is not thereby defeated.
    This was an action of trover, to recover the value of a small dwelling-house, and was tried before Fletcher, J., by whom it was reported for the consideration of the whole court.
    On the 2d of September, 1833, one Alden Sibley, being then the ownei of the building in question, which stor'd upon land leased of one Oliver Starkweather, sold and con veyed the same to the defendant, who thereupon mortgaged it back to him, to secure the payment of a note of that date for the sum of $200, payable on demand. In October fol-owing, Sibley gave the note and mortgage, without any written assignment, to one Gardner Reekard, as security for a debt of $200; and in December, 1846, Reekard delivered the note and mortgage to the plaintiff; at whose request, and without any additional consideration, Sibley then made a written assignment of the mortgage to the plaintiff. After this conveyance, the mortgage, of which no record had been previously made, and the assignment, were both recorded.
    It was in evidence for the plaintiff", that he had taken the necessary steps to foreclose the mortgage, and that after the expiration of the statutory term of sixty days, and before the commencement of this action, he made a demand upon the defendant to deliver him possession of the building, which the defendant refused to do. It was admitted that the building, at the time of the demand and of the service of the writ, was in possession of the defendant. But no request or demand, for the payment of the note, for which the mortgage was given, was proved to have been made, unless the foreclosure oí the mortgage operated as such.
    It was in evidence for the defendant, that on the 25th of January, 1834, Alden Sibley, the original mortgagee, assigned all his property of every description, for the benefit of his creditors; that the assignees settled the estate of the assignor, and paid out the proceeds thereof, in conformity with the provisions of the deed of assignment; and that in the year 1837, the defendant became the owner in fee of the and on which the building stood, by a conveyance from the neirs or devisees of Oliver Starkweather. Upon this evidence, a verdict was taken by consent for the plaintiff, for the value of the building; subject to the opinion of the court, as to whether the plaintiff is or is not entitled to recover in this action.
    
      J. H. Clifford, for the defendant.
    
      T. D. Eliot, for the plaintiff.
   Wilde, J.

This is an action of trover, for the conversion of a small building; and the question is, whether upon the facts reported, the plaintiff has proved a valid title to the. property.

The building, in September, 1833, was the property of one Alden Sibley, and was by him then sold to the defendant, who thereupon mortgaged it back as security for the payment of a certain note of hand to him, for $200, which was then due. In December, 1846, this mortgage was assigned in writing, by Sibley, to the plaintiff, whereby he acquired a legal title to the property mortgaged, provided Sibley had a right to make the assignment. The counsel for the defendant contends that he had not, and it was proved, that, in January, 1834, Sibley made a general assignment of all his property to certain assignees, in trust, for the benefit of his creditors. But it was also proved, that before that assignment, Sibley had delivered the note and mortgage to one Reckard, as security for a debt of $200; that the note and mortgage were afterwards by him delivered over to the plaintiff; and that Sibley, thereupon, without any new consideration, made a written assignment of the mortgage, as before stated, to the plaintiff.

Upon these facts, the question is, whether the delivery of the note and mortgage to Reckard, as security for a debt, without an assignment in writing, is to be considered as an equitable assignment, which is entitled to protection in a court of law. It has been long well settled, that if a note of hand is transferred by delivery, bona fide, and for a valuable consideration, this is a valid assignment in equity, which courts of law will regard and protect, although the assignee cannot maintain an action at law thereon in his own name. And the same principle applies to other choses in action. An equitable interest m a judgment may be assigned for a valuable consideration, by the delivery of the execution thereon to the assignee. Jones v. Witter, 13 Mass. 304; Prescott v. Hull, 17 Johns. 284; Henry v. Brown, 19 Johns. 95; Ford v. Stuart, 19 Johns. 342; Dunn v. Snell, 15 Mass. 481. The same principle applies also to the mortgage, which was delivered with the note as security. Indeed, if the mortgage had not been delivered with the note, the assignment of the note would, according to the doctrine held by courts of equity, draw after it the mortgaged property as a consequence. It was so held in Martin v. Mowlin, 2 Bur. 969, 978, by lord Mansfield, who also held the same principle to be applicable to mortgages of real estate, notwithstanding the statute of frauds. And so it was held in the case of Green v. Hart, 1 Johns. 580. The leading case on this point is that of Russel v, Russel, 1 Bro. C. C. 269. And this decision, Powell, in his treatise on the law of mortgages, says, had met with universal disapprobation, because (according to the language of lord Eldon) it was a virtual repeal of the statute ; nevertheless, it had been always acted on, and each succeeding case had added stability to a decree, which it had previously pronounced to be settled on spurious principles.” And it has been frequently decided by this court, that such an equitable assignment of a mortgage of real estate is not valid by our statutes, relating to the conveyance and transfer of real estates. But these decisions are confined to mortgages of real estates; and in Parsons v. Welles, 17 Mass. 419, the distinction is alluded to between mortgages of real and personal property, and the English doctrine as to the latter is impliedly if not expressly admitted.

But in this case, it is not necessary to decide, that the assignment of the mortgage debt would draw after it an equitable assignment of the mortgage; for the mortgage deed and the note were both deposited with Reckard for the same purpose, namely, to secure the payment of the debt; and this deposit amounts, according to all the authorities, to an equitable assignment of the note and mortgage. 3 Pow. Mortg. 1059, Rand’s ed.; Jones v. Gibbons, 9 Ves. 407, 411; Martin v. Mowlin, 2 Bur. 969 ; Green v. Hart, 1 Johns. 580; Parsons v. Welles, 17 Mass. 419.

By the laws of Massachusetts, such a deposit or delivery would not amount to an assignment of a mortgage of real estate; but the objections to such an assignment do not apply to mortgages of personal property. It appears by the eases already cited, that the delivery of a note of hand, or other chose in action, to an assignee, for a valuable consideration, without an assignment in writing, is a valid assignment in equity, which courts of law will take notice of and protect. And the assignment of a mortgage of personal' property by delivery stands on the same footing, and is entitled to the same protection. By such an assignment, however, the legal estate did not pass to the plaintiff, and this action could not be maintained in his own name, before the assignment in writing; yet he might maintain an action for the conversion of the property so equitably assigned in the name of Sibley, which action Sibley would have had no right to discharge.

Nor did the title to the mortgaged property pass by the general assignment of Sibley’s property for the benefit of his creditors; and it is manifest, that it was never intended to pass thereby ; for the assignees have settled that concern, and paid over the proceeds of the property assigned:, without claiming the mortgaged property, nor do they now claim it

We are therefore of opinion, that the legal title to the mortgaged property remained in Sibley until he conveyed it to the plaintiff, who had before acquired the equitable title thereto from Reckard.

It was argued by the defendant’s counsel, that the note has been barred by the statute of limitations; but this clearly cannot defeat the plaintiff’s title to the mortgage property, so as to bar the present action.

Judgment for the plaintiff on the verdict.  