Page:Federal Reporter, 1st Series, Volume 9.djvu/767

 752 FEDERAL REPORTER. �In the fifth edition he added to the note : "And it is in opposition to the current of authority and reason of the thing." Vol. 4, p. 145. In all this the effect of a transaction of loaning money and taking a mortgage, without more, seems to be what is spoken of. The statute seems to be aimed against sustaining an action for a debt secured by mortgage merely by the production of the mortgage, when it contains no express covenant to pay the debt. It sets out with the declaration that no mortgage shall be eonstrued as implying a covenant, etc., and what follows seems to be intended to carry out that principle. That a personal action can be maintained for a mortgage debt when proved by competent evidence, whether in writing or by paroi, cannot be questioned. �In Conway v. Alexander, 7 Cranch, 218, Mr. Chief Justice Marshall said : "It is, therefore, a necessary ingredient in a mortgage that the mortgagee should have a remedy against the person of the debtor." And in Bussell v. Southard, 12 How. 139, Mr. Justice Curtis said: "In such a case it is settled that an action of assumpsit will lie." In a case like this the deed could not be shown to be a mortgage with- out showing the debt ; showing it to be security would in volve show- ing what it secured. Still the statute is understood to apply as well to an absolute deed made for security, as to a conditional one made for security. Each is understood to be a mortgage. Ilone v. Fisher, 2 Barb. Ch. 559. But here is not the mere transaction of loaning money and taking either a teehnical mortgage or an absolute deed for security. When the plaintiff paid the money for the defendant, as his surety, the law raised the promise at once from the defendant to repay it; and a cause of action acorued for it immediately, and that is the cause of action in suit. The proof of it consists in trans- actions entirely separate from the deed. The conveyance was not taken in satisfaction of this pre-existing debt; neither was it any consideration for the debt. Nothing rests upon any implication in the deed. The statute was not intended to take away perfected causes of action, which could be proved without violating it, and the pi'oof of this cause of action is not touched by it. This view is the more satisfactory because upholding the suit for the plaintiff will not enable him to collect any more than his just due, however ample the security may be; and if the suit failed, and the security should be inadequate, he might, for want of ability to maintain the suit, lose some part of what justly belongs to him. �The motion must be denied, and judgment be entered on the verdict. ��� �