The delivery to Sargent of the genuine mortgage was ineffectual to transfer the genuine note, and without the genuine note the mortgage is of no value and has no assignable quality. (Polhemus v. Trainer , 30 Cal. 686; Brown v. Witts , 57 Cal. 304; Kellogg v. Smith , 26 N.Y. 18.) A note secured by mortgage has all the characteristics and privileges of commercial paper.
C. V. Grey, for Appellant, cited Civil Code, § 3123; Code Civ. Proc. § 368; Vinton v. Crowe, 4 Cal. 309; Hayward v. Stearns, 39 Cal. 58; Hart v. Cooper, 47 Cal. 77; Brown v. Witts, 57 Cal. 304; Fuller v. Hutchings, 10 Cal. 523; Baxter v. Little, 6 Met. 7. A.