877.  Nature  of  Mortgage.  "A  mortgage  has  a  dual  character
— ^first,  it  is  a  covenant  to  pay  a  sum  of  money  upon  an  expressed
consideration,  and  second,  it  is  a  conveyance  of  land  to  secure  the
debt.  The  first  is  an  executory  contract,  and  the  second  an  ex-
ecuted conveyance  with  a  defeasance,  and  liable  to  be  defeated  if
at  the  time  it  is  sought  to  be  enforced  there  is  nothing  due  upon
the  executory  contract  it  was  given  to  secure.  See  Perkins  v.
Trinity  Realty  Co.,  69  N.  J.  Eq.  (3  Robb.)  723,  727-,  affirmed
S.  C,  71  N.  J.  Eq.  (i  Buch.)  304.  Upon  this  whole  mattjer  I
have  no  doubt  at  all,  but  that  the  real  estate  mortgage  for  $600
was  given  as  collateral  security  for  the  payment  of  the  $1,200
chattel  mortgage,  and  that,  the  latter  being  paid,  the  former  must
be  cancelled."    Wilbur  v.  Jones,  80  E.  524  (Err.  &  App.  1912)  ;

In  Magie  v.  Reynolds,  51  E.  116  (Chan.  1893).    "Rule is

that  an  assignee  of  a  bond  and  mortgage  takes  it  subject  to  all  the
equitable  defences  which  the  original  obligors  and  mortgagors

have  thereto The  principle  underlying  this  rule  is  that  the

mortgage  is  a  mere  incident  of  the  debt  which  it  is  intended  to  se-
cure, and  a  defence  to  the  debt  is  a  defence  to  the  mortgage."


193
13


CHAPTER  XLVII.
NATIONAL  BANK  MORTGAGElB.
278.    Valid  Inter  Partes.
