Rejection of the Issuance of an Owner's Mortgage Deed by the Current Property Owner

Facts

Plaintiff X. acquired a property from his parents [D.] and [E.] in 2001, which was encumbered by a fifth-ranking mortgage deed in the amount of CHF 8,000. This mortgage deed had originally been issued by seller A. to buyers [B.] and [C.] in 1980 to secure a loan. When [B.] and [C.] sold the property to [Y.] in 1983, the mortgage deed was transferred to [Y.] without consideration. [Y.] then sold the property to [D.] and [E.] in 1987 without transferring the mortgage deed. X. now demanded that [Y.] surrender the mortgage deed, which was rejected by the lower courts.

Considerations

The Federal Supreme Court confirms the rejection of the surrender of the mortgage deed. While the mortgage deed is generally to be surrendered to the debtor or third-party mortgagee upon repayment of the claim, X. was neither the debtor nor the third-party mortgagee at the time of the repayment of the claim, and therefore cannot invoke these rights. As the current property owner, X. could only acquire the mortgage deed if he were authorized to repay the claim like a debtor, which is not the case here.