Browne v. Perris

¶1(dissenting.) I confess that my impression upon the argument was that the mortgage in question passed to the heirs of William G. Perris as a so-called muniment of title. The idea that these heirs should take the fee with precisely the same concomitants as their ancestor was attractive, and it seemed to satisfy the natural equities of the case. Upon reflection, however, I am convinced that this position is unsound. Mr. Perris could undoubtedly purchase an existing mortgage upon his property without necessarily causing a merger; and, in the present instance, he has clearly expressed his intention against any such merger. All this, Mr. Perris could do; but what he could not do was to change the legal characteristics of the purchased security. The mortgage was essentially a chose in action, and although, by its assignment to himself, Mr. Perris became a mortgagee in possession, yet he thereby acquired no estate in the land. Trimm v. Marsh, 54 N. Y. 607. In this case, Earl, J., said: “I am of opinion that the mortgagee [in possession] has no estate in the land which can be sold on execution. His interest is a mere chose in action, a debt secured by a pledge of real estate. His debt is not merged in the real estate by the possession.” And again: “If the mortgagee should die in possession, the debt would still go to his personal representatives, to be administered as personal estate, and the mortgagor’s title would go to his heirs.” It follows from this that Mr. Perris held the mortgage as an unmerged and separately existing chose in action. How, it could not well be alive for one purpose, and dead for another. Mr. Perris took it, in the language of the assignment, “to have and to hold forever as a muniment of title.” But he took and held it none the less absolutely, and without limitation. It was, in fact, its absolute ownership, treated as a valid *100existing security, which alone gave it force as a muniment of title. Indeed; this mortgage was in no just sense a muniment of title at all; much less as the respondent puts it, an heir-loom. It was simply a means of foreclosing, and thus acquiring a title antedating that of Mr. Perris. To accomplish this, however, the mortgage had to be alive; and, if alive for that purpose, It was equally alive for the purposes of sale, transfer, and transmission. It comes to this, that the words “as a muniment of title” are simply expressive of the assignee’s object in making the purchase in that form. He, in effect, says: “I shall not satisfy this mortgage, nor shall I permit its extinguishment by merger. I shall purchase it, and keep it separate, so that, if hereafter I need to use it to sustain my title, I may do so; and that is the sole use to which, hereafter, I mean to put it.” But there was in this no legal limitation upon another use, nor could there be. He could have changed his mind, and reissued it; and he could have bequeathed it. It seems clear to me that, under such circumstances as those disclosed by this record, the assigned mortgage was simply personalty in Mr. Perris’ hands, and that, upon his death intestate, it went to his personal representatives. It could not descend to his heirs, because it was not real estate. It was not attached to the realty as an appurtenance; nor could it be so attached. Any attempt to blend it with the realty would effect a merger, Indeed, the only way the heir could be placed in Mr. Perris’ position was by a bequest to him of the mortgage. In that, case, however, the heir would have taken it as personalty, and he could úse it to fortify his title, or otherwise, as he saw fit. In the absence of such a bequest, there is no other place for it in the law except that occupied by all other choses in action of the deceased assignee. In my opinion, the judgment appealed from should be reversed, and a new trial ordered, with caste to abide the event.