Lord v. Crowell , 75 Me. 399 ( 1883 )

Virgin, J.

When a debtor gives his promissory note to his creditor, he thereby gives his personal security for the payment of his debt, and subjects his person and property generally, to any of the remedies which the law provides for compelling its payment at and after maturity. And if, at the same time, the debtor secures the ultimate payment of his debt by a mortgage on his property, real or personal, he thereby gives to his creditor an additional security, to either of which he may resort. If he elects to rely on his mortgage on real estate, he may adopt any of the modes of foreclosure; in which case the law affords the debtor the right to pay his debt and save his property at any time during the statute period for redemption. If, however, he chooses to resort to the ordinary process of attachment and levy, he may levy his execution on any unexempted real or personal property of his debtor; and by waiving his mortgage, he may in the absence of any intervening interests of third persons, make' his extent or levy on the real or personal property covered by that. . There is no restriction in the law of remedies upon the' creditor. Each of the remedies is open to him and each is-effectual. The debtor cannot limit the creditor to his remedy on the mortgage, any more than he can confine him to his personal action on the note. Both are parts of one system of law, and both must stand together. Porter v. King, 1 Maine, 297; Crooker v. Frazier, 52 Maine, 405; Coggswell v. Warren, 1 Curt. 223; Libbey v. Cushman, 29 Maine, 429; Whitney v. Farrar, 51 Maine, 418. And if the payee of the note legally transfers the note to a third person, the debtor has no reason to-complain of a like result; for he in terms authorizes the transfer with the knowledge, presumably, that along with the transfer go all the incidents and legal rights without restriction, which pass with the transfer of such personal securities-, and cast upon him no legal burden.

It is well settled that when the mortgagee has negotiated the note secured by the mortgage to a third person, without assigning-the mortgage, he simply holds the mortgage in trust for the holder of the note. Johnson v. Candage, 31 Maine, 28; Moore v. Ware, 38 Maine, 496; Morris v. Bacon, 123 Mass. 58. Neither by assignment, nor otherwise, can he convey to another any other right than he himself had; for the mortgage itself, together with the non-production of the note secured, would be ample notice to the assignee,of the nature and extent of his title. Moore v. Ware, supra; Jordan v. Cheney, 74 Maine, 359.

But a mortgage by its very terms becomes extinguished by payment of the mortgage debt, at or before the breach of the condition. Holman v. Bailey, 3 Met. 55. And, as a matter of course, if the land mortgaged be all appropriated on the mortgage debt, the mortgage would be extinguished, though the debt might not all be thereby paid. And since the provisions of R. S., c. 90, § 28, have been in force, the same result is wrought fby payment after condition broken. Wilson v. E. & N. A. R. Co. 67 Maine, 358, 361.

Our opinion, therefore, is that the mortgage was extinguished "by the levy and consequent appropriation of all land mortgaged ■ on the mortgage debt, assuming the levy was made in accordance, with the provisions of the statute.

On examination of the officer’s return, it does not appear "but that Morrison might have had an attorney, who, had he received due notice, would have chosen an appraiserand " the levy for this cause is defective.” Wellington v. Fuller, 38 Maine, 61. But as between these parties the officer can amend his return, if the facts, as they really existed, will cure the defect. Wellington v. Fuller, supra; Knight v. Taylor, 67 Maine, 593.

This result operates harshly upon the defendant; but this ■plaintiff is in nowise at blame.

As the case is to stand on the docket for the defendant to be ’heard on a claim for betterments, the officer can amend his return, ¡and then the entry will be,

Defendant defaulted.

Appleton, C. J., Walton, Peters, Libbey and Symonds, .JJ., concurred.