#### Samuel Warden *versus*John Adams.

A, a mortgagee, delivers his mortgage to a scrivener, for the purpose of having an assignment thereof made to B, his creditor. Before such assignment was prepared and executed, and while the mortgage deed was in the scrivener’s hands, A makes an assignment of the mortgage, upon a separate paper, to C, another creditor, which was also acknowledged and recorded before the assignment to B was completed, C knowing that the mortgage deed had been so delivered to the scrivener. The title of 6 prevailed.

This was a writ of entry by the said *Warden,*as assignee of a mortgage made by the said *Adams*to one *John Earle.*

The action came on for trial before the *Chief Justice,*at the last April term in this county, and the parties agreed that the following facts should be considered as proved in the case, *viz.:*The said *Adams*made and executed the mortgage deed declared on, conditioned for the payment of six promissory notes made by the said *216*John*and one *Lewis Adams,*payable to the said *Earle,*or his order. Afterwards, the said *Earle*became insolvent, and, from the 15th of November to the 5th of December, 1815, was in failing circumstances. Previously to the assignment hereafter mentioned, *Earle*had pledged one of the said notes to a person not interested in this suit; but did not * assign or deliver over to him the mortgage deed as security, and he afterwards redeemed the note, which he had since transferred to one *Sewall Hamilton,*but not until after the execution of the assignment to *Warden.*On the 20th of November, 1815, he deposited with a scrivener two of said notes, and also the mortgage deed, fov the purpose of having an assignment thereof made to *Warden,*to secure a debt due from *Earle*to him.

On the 27th of the same November, *Earle*endorsed one of the said six notes to said *Hamilton,*as part security for a debt due him from *Earle,*and at the same time assigned said mortgage deed and the premises therein mentioned to *Hamilton,*by his deed duly acknowledged and recorded on the same day; the said assignment being made on a separate piece of paper, and referring to the mortgage.

On the 28th of said November, the said *Earle*executed an assignment of said mortgage deed, on the back thereof, to said *Warden,*as security for his said debt to him, and of some debts due from *Earle*to certain other persons, which *Warden*was to assume. This assignment was not acknowledged or recorded. The mortgage deed, and the two notes left with the scrivener for the purpose of having an assignment made, remained in the scrivener’s hands until the actual execution of the said assignment to *Warden. Hamilton*recovered judgment for possession of the mortgaged premises against *Adams,*and possession was delivered to him by the proper officer ; and *Adams*afterwards entered, and continued in possession by a paroi lease from the assignee of *Hamilton.*

The demandant offered to prove, by the testimony of *Earle,*that, when he made the assignment to *Hamilton,*and prior to that time *Hamilton*knew that the original mortgage deed was in the hands of the scrivener, for the purpose of an assignment being made to the demandant, for securing the pajunent of the two notes transferred to him as aforesaid.

* But the chief justice, being of opinion that, the demandant could not maintain his action, in consequence of the prior assignment to *Hamilton,*under which the tenant is in possession ; and also that *Earle*was not a competent witness, to prove the fact for which he was offered, if such fact were material, directed a nonsuit; which wa« t.o be set aside, and a new trial *217granted, if, upon the above facts, together with the said knpwledge of *Hamilton,*this action could be maintained.

*Burnside*and *Bangs,*for the demandant.

The delivery of the mortgage deed, together with the notes endorsed, for the purpose specified, amounted to such an equitable assignment as the law will protect. It is said by Lord *Mansfield,*in the case of *Martin*vs. *Mowlin,*(1) that “a mortgage is a charge upon the land; and whatever would give the money will carry the estate along with it, to every purpose. The estate in the land is the same thing as the money due upon it.” “ The assignment of the debt, or forgiving it, will draw the land after it, as a consequence; nay, it would do it, though the debt were forgiven only by paroi; for the right to the land would follow, notwithstanding the statute of frauds.” This doctrine is recognized and confirmed by the Supreme Court of *New York,*in the case of *Green*vs. *Hart.*(2) Then, the second assignment by *Earle*to *Hamilton,*with the knowledge of this latter of the prior transaction, was fraudulent and void as to the demandant. And if we should be debarred from fixing this knowledge upon him, we contend that he must be presumed, from the facts found in the ease, to have known of the delivery of the deed to the scrivener, and the purpose of such delivery. The absence of the mortgage deed should have put *Hamilton*on his guard; and he is chargeable with fraudulent motives, in taking an assignment under such circumstances. It can make no difference that but two of the six notes were endorsed to the demandant. The mortgage was given as security for these two notes, and might, legally and equitably, be assigned with them.

*That *Earle*was a competent witness, we refer the Court to the cases of *Loker*vs. *Haynes,*(3)*The Inhabitants of Worcester*vs. *Eaton,*(4) and *Hill*vs. *Fayson 8f Al.*(5) He was not offered to impeach his own deed, but merely to postpone the security intended to be given by it.

*Newton,*for the tenant.

The assignment to *Hamilton*was prior to that to the demandant, and, being in every circumstance conformed to the requisitions of the statute, must have the preference. The assignment of a mortgage is a conveyance of the rents and profits. (6) Then the assignee has such an interest in the land as cannot pass without writing.

The *dictum*of Lord *Mansfield,*in the case of *Martin*vs. *Mo wlin,**218has been completely put down by Judge *Trowbridge,*in his tract upon mortgages; (7) and it may well be presumed that, if the judges, who agreed in the decision in the case of *Green*vs. *Hart,*had read that tract, they would not have given the opinion they did. That decision was, however, in chancery, and is no precedent for the government of this Court.

If the fact proposed to be proved by the testimony of *Earle*were legally. in evidence, it would not better the demandant’s case. (8)*Hamilton*had the first legal assignment of the mortgage ; and there was no fraud in the transaction, for *Earle*had a right to prefer making him secure rather than another. All that the demandant can complain of amounts to nothing beyond a violation of a promise or undertaking, on the part of *Earle,*to give him the preference. (9)

(1)

 2 *Burr.*978.

(2)

1 *Johns.*590. —See also *Powell on Mortgages,*186 to 190. —11 *Mass. Rep*475

(3)

11 *Mass. Rep.*498.

(4)

*Ibid.*368.

(5)

3 *Mass. Rep.*559.

(6)

11 *Mass. Rep.*474, *Goodwin*vs Richardson, *Adm.*

(7)

8 *Mass. Rep.*557, et seq.

(8)

 See 12 *Mass. Rep.*523. —11 *Mass. Rep.*342.—5 *Mass. Rep.*133.

(9)

5 *Mass. Rep.*144.

*By the Court.*

By force of our statutes regulating the transfer of real estates and for preventing frauds, no interest passes by a mere delivery of a mortgage deed, without an assignment in writing and by deed, *(a)*

An assignment, made by a separate deed, without the delivery over of the original mortgage deed, conveys all the interest of the mortgagee, and makes the grantee the assignee of the mortgage.

* The knowledge imputed in this case to *Hamilton,*the assignee, of an intention on the part of *Earle,*the mortgagee, to assign the mortgage to the demandant, does not impair the tenant’s title — he being a *bona fide*creditor, and having a right, by his vigilance, to secure his demands in this way, just as he would have had by an attachment, although he might know that another creditor intended to make an attachment, and had taken incipient measures therefor. The nonsuit is not set aside. (b)

*Judgment for the tenant for his costs.*

(a)

*а) Bunjan*vs. Mersereau, 11 *Johns.*534.— *Wilson*vs. *Troup,*2 *Cowen,*196.

(b)

*M Mechan*vs. *Griffing,*3 *Pick.*149.— *Cushing*vs. *Hurd,*4 *Pick. 253.—Newnall*vs. *Burt, 7 Pick.*157. — *Hurd*vs. *Cushing & Al.*7 *Pick.*169. — *Doe*vs Alsop, 5 *B & Ald.*142. *-M'Neil*vs. *Cohill,*2 *Bligh.*228.