
    Pope & Slocum v. Jacobus, et al.
    
    1. Assignment on a mortgage. The assignment of a debt secured by mortgage draws after it the mortgage, but an assignment of the mortgage without the debt, transfers a naked trust, and does not cut the mortgagor off from any equity existing in his favor against the note as if it was in the hands of the payee.
    2. Equitable relief : Semble, that an assignment of a mortgage and a verbal assignment of the debt might be regarded as valid, between the parties, in equity.
    
      Appeal from Clayton District Court.
    
    Thurday, December 29.
    DEPENDANTS made a mortgage to one Fields, to secure a note payable to him or order. Before the note matured, Fields, for value received, assigned all his “right, title and interest” in said mortgage to plaintiffs. They bring this bill to foreclose, and aver that the note, as well as the mortgage, is their property, hut it isnot assigned.
    
    Defendants answer that the consideration for which said note was given (specifying it) has entirely failed. To this answer there was a demurrer, which was overruled, and plaintiffs abide by their demurrer, and appeal to this court.
    
      JElijah Odell for the appellants,
    cited Stevens N. P. 1060; Wilson v. Troup, 2 Cow. 195; lb. 781; 6 John. 49; 5 Cow. 170; 8 Mass. 214; 10 lb. 579; 11 lb. 302; 4 Dal. 345; 2 Sbep. 233; 1 Jobn. C. 173; Burkley v. Chapman, 9 Conn. 5; Dudley v. Caldwell, 19 Conn. 218; King v. Harrington, 2 Aik. 33.
    
      Batigh $ Stoneman for tbe appellees.
    No brief on file.
   Weight, 0. J.

Two questions are made: First, Does tbe assignment of tbe mortgage carry with it tbe tbe note; Second, If it does, will sucb an assignment, being made before tbe maturity of tbe note, baye tbe effect of cutting off all equities in fayor of the makers of tbe note against tbe payee. Tbe assignment of tbe debt, it is conceded as a general rule, draws after it tbe mortgage, as a consequence or appurtenance to it. An assignment of tbe interest of tbe mortgagee in tbe land, without an assignment of tbe debt, is considered as tbe mere transfer of a naked trust, and is without any meaning or use, as far as relates to tbe debt. “ This ” says Chancellor Kent “ is tbe general language of tbe courts of law, as well as tbe courts of equity, and tbe common sense of parties, tbe spirit of tbe mortgage contract, and tbe reason and policy of tbe thing, would seem to be with tbe doctrine.” 4 Kent 194, 1 Hill, on Mortg. 164, 166, 170; Johnson v. Hart, 3 John. Cases 329; 2 Story’s Eq. 1023, note; Wilson v. Troup, 3 Cow. 195; Garroch v. Sherman, 2 Hallstead Ch. 219. In one.case it is said that tbe land is but appurtenant to tbe debt; whoever owns tbe latter is likewise owner of tbe former,” and again it is but an incident attached to tbe debt, and in reason and propriety it cannot and' ought not to be detached from its principal. Tbe mortgage interest as distinct from tbe debt is not a fit subject of assignment. It has no determinate value.” And see Crow, McCreary & Co. v. Vance, 4 Iowa 434; Carroll v. Reddington, 7 Iowa 386; Wood v. Sands, 4 G. Greene 214. In this last case it is said that tbe assignment of tbe mortgage without tbe assignment of tbe note, created no liability against tbe assignor whatever. 'That case is not unlike this, in tbe fact that the petition alleged that the note was assigned, while the copy attached showed that it had not been indorsed.

We do not wish to be understood as saying that the written assignment of the mortgage, and a parol assignment of the note, or even a parol assignment of both might not bo good in equity as between the parties, or for some other purposes. We only hold that the assignment of the mortgage alone, does not so transfer the principal thing, the debt, as to cut the mortgagors off from any equity existing in their favor against the note, to the same extent as if it was in tho hands of the payee.

The judgment on the demurrer is affirmed.  