Noble v. Watkins

delivered the opinion.

Several objections are made to the regularity and validity of the decree appealed from, such as that the complaint does not state .facts sufficient to constitute a cause of suit, the decree is not supported by the evidence, and the like; but none of them are such as Mrs. Godfrey can raise unless her bill of intervention shows that she has an interest in the litigation which entitles her to be made a party thereto.

It is not entirely clear from some of the allegations of her bill *520what she bases her claim to intervene in the pending litigation upon. But, taking all the averments in connection with the admissions of her counsel in their brief, it is founded upon a deed of conveyance from Tennyson of the mortgaged premises. Such a deed did not operate as an assignment of the note and mortgage given by Watkins and wife to Tennyson, nor did it convey any interest in the mortgaged property. In jurisdictions where mortgages convey the legal title, it has been held that a deed of absolute conveyance by the mortgagee of the mortgaged premises will operate as an equitable assignment of the note and mortgage, when at the time of its execution the mortgagee was in possession: 20 Am. & Eng. Enc. Law (2 ed.), 1029; Welch v. Phillips, 54 Ala. 309 (25 Am. Rep. 679). But where, as in this state, a mortgage on real estate does not convey an interest in the land,' but constitutes only a lien or encumbrance thereon (Anderson v. Baxter, 4 Or. 105; Sellwood v. Gray, 11 Or. 534, 5 Pac. 196; Marx v. La Rocque, 27 Or. 45, 39 Pac. 401; Security Trust Co. v. Loewenberg, 38 Or. 159, 62 Pac. 647), it is clear that an instrument executed by the mortgagee which purports to convey to a stranger the mortgaged property cannot operate as an assignment of the mortgage as against third persons, unless the language of the conveyance is such as to manifest an intention to that end: Swan v. Yaple, 35 Iowa, 248; Johnson v. Lewis, 13 Minn. 364 (Gil. 337). Mrs. Godfrey, therefore, had no interest in the mortgage or in the mortgaged property that would entitle her to intervene in the pending litigation.

The averment in the bill that she is the owner and holder of the note and mortgage is manifestly the conclusion of the pleader from the facts stated and cannot be regarded as an averment of a fact.

Decree affirmed. Aeeirmed.