Mortgage, Discharge, Assignment. Payment. Equity Pleading and Practice, Bill. One who had received a conveyance of real estate subject to a mortgage, and had assumed, and agreed with his grantor to pay, the mortgage note, made such payment to the holder of the mortgage, who, at his request, delivered to him an assignment of the mortgage which named as assignee a person who previously had had no interest in the mortgage or in the property and who knew nothing of and paid nothing for the assignment. The assignment having been recorded but never delivered to the assignee, the owner died testate, and by his will devised the property to his son subject to the mortgage which, the will stated, the son was "to assume and to pay." The person named as assignee of the mortgage brought a bill in equity to foreclose the mortgage against the son to whom the property was devised. Held, that the bill must be dismissed, since the mortgage debt was extinguished, having been paid by one who thus discharged an obligation imposed upon him by the deed under which he took the property; and that what purported to be an assignment must be held to be a release.
The allegations of a bill in equity were that the plaintiff was one of the assignees of a mortgage of real estate, that one of the defendants (of whom there were two) was a co-asignee, that the two defendants were owners of the real estate subject to the mortgage, that by the terms of the mortgage the holder thereof upon a breach of its conditions was entitled to sell the property at public auction, that there had been a breach of the mortgage in non-payment of principal and interest and failure to insure, and that that one of the defendants who was co-assignee with the plaintiff refused to join with the plaintiff in affecting a sale of the premises by public auction. The prayers were that a sale be ordered and that the plaintiff's share of the proceeds from such sale be paid to him, that the defendants be enjoined from conveying their interest and be required to show cause why the sale prayed for should not be ordered, that that defendant who was the plaintiff's co-asignee "be required to account" to the plaintiff, and "for such other relief as may be deemed proper." The judge who presided at the hearing on the bill found that the father of the defendants, who had received title to the property subject to the mortgage, which he assumed and agreed to pay, paid it, but that, at his request, the holder of the mortgage executed and delivered to him an assignment in terms running to one of the defendants and to two other persons whose interest the plaintiff held, and that he then died testate, by his will leaving the property to his two sons, the defendants, "subject nevertheless to the mortgage thereon, which mortgage and other charges and incumbrances affecting the same, at my death my two sons are to assume and to pay." The plaintiff contended that, although the bill might not be entertained as a bill to foreclose the mortgage under its terms, still, by the terms of the will, the amount of the mortgage debt was a charge upon the land in the hands of the defendants, and that the bill was broad enough to authorize a decree declaring a lien upon the land for the amount claimed. Held, that, under the bill as it then was, such contention of the plaintiff was not before this court for determination.
HAMMOND, J.
Under the circumstances disclosed in the record, the payment of the mortgage debt by Patrick Campbell with his own money, in discharge of the obligation imposed upon him by the deed under which he held the property, was an extinguishment of the mortgage debt; and that is so even if there be an assignment of the mortgage with the intent to keep it alive. The doctrine is thus stated by Shaw, C.J. in Brown v. Lapham, 3 Cush. 551, 554, 555: "If the money is advanced by one whose duty it is, by contract or otherwise, to pay and cancel the mortgage, and relieve the mortgaged premises of the lien, a duty in the proper performance of which others have an interest, it [the writing given upon the payment] shall be held to be a release, and not an assignment, although in form it purports to be an assignment. When no such controlling obligation or duty exists, such an assignment shall be held to constitute an extinguishment or an assignment according to the intent of the parties; and their respective interests in the subject will have a strong bearing upon the question of such intent."
This case is governed by the first rule above laid down. At the time of the payment, there was no intervening estate or interest between the interest of the mortgagee and that of the owner of the equity. The mortgage debt having been extinguished by the payment under these circumstances, the owner of the equity could not keep it alive even by causing an assignment to be made, even to a third party who contributed in no way to the payment. Among the cases bearing upon the general question, see Carlton v. Jackson, 121 Mass. 592, and cases there cited; McCabe v. Swap, 14 Allen, 188; Putnam v. Collamore, 120 Mass. 454. There being no outstanding mortgage, the bill cannot be maintained as a bill for foreclosure.
It is urged that, even if the mortgage debt has been paid, yet it sufficiently appears that the testator supposed it was a lien upon the land, and that by his will he intended to make the amount which should have been due upon the debt, if it had not been paid, a charge upon the land in the hands of the devisees, his sons John and James; that the devisees, having accepted the devise, hold it subject to the charge, and that the bill is broad enough to authorize a decree declaring a lien upon the land for the amount claimed. But we think that the whole framework of the bill is inconsistent with that view of the case, and that in the present form of the bill this view of the plaintiff's rights is not before us for determination.
Bill dismissed.