Excerpt from Practice Reports in the Supreme Court, Vol. 31: And Court of Appeals of the State of New York

It is a familiar and well settled rule of law that the assignment of the principal instrument carries with it all collaterals as incidents, though not named.

And where a mortgage is assigned and taken as collateral security to a contract to convey real estate, and the contract is assigned, the mortgage in fact belongs to the assignce of the contract, though not named in the assignment.

Where such mortgage is assigned to subsequent assignees, neither the first nor last assignee can maintain an action to foreclose the mortgage where there has been no breach of the contract. The subsequent assignee of tho mortgage, though a purchaser bona fide, and for a valuable consideration, stands in no better position than the first, although the assignments are absolute on their face, and express a full consideration.

The assignee of a mortgage must ascertain at his peril as to any defenses that may exist against the mortgage, or he must rely upon the covenants of his vendor.

Albany General Term, December, 1863.

Before Hogeboom, Peckham and Milleb, Justices.

This is an appeal from a judgment entered on the decision of a justice of this court at the Albany circuit, held in March, 1863. The action was for the foreclosure of a mortgage by the plaintiff as assignee. It appeared by the evidence that this mortgage had been taken by John D. Livingston as collateral security for the fulfillment of a contract by defendants Smead and Alexander, for the purchase of some real estate. It also appeared that there had been no breach in the contract up to the time of the commencement of this action; that Livingston had assigned all his interest in the contract before the commencement of this action to Gidney, a defendant herein.

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