176 Mass. 431 | Mass. | 1900
There was a motion by the plaintiff in the Superior Court that the evidence taken by the official stenographer should be reported to the full court. The motion was denied; and the plaintiff appealed to this court, and the matter has been decided against him here. There remains only his appeal from the decree dismissing the bill with costs.
Ho evidence is before us, and the only question, therefore, is whether the decree is warranted by the pleadings. Rankin v. Fitchburg Ins. Co. 150 Mass. 55. ,
The substance of the plaintiff’s bill is that the mortgage had been paid by the defendant’s husband, and had been discharged
It is manifest that under these pleadings the court would have been justified in finding, if the evidence warranted it in so doing, that the mortgage was duly assigned to the defendant, and that the legal title to it vested in her, and that there was no intent to hinder or delay her husband’s creditors either on her part or his. Whether what took place operated as a payment and discharge of the mortgage or as an assignment was a question of fact depending on the intention of the parties. Brown v. Lapham, 3 Cush. 551. The fact that the mortgagor paid to the mortgagee the amount due under the mortgage would not necessarily operate as a payment and discharge of the mortgage and render an assignment of it by the mortgagee to a third party invalid. Sheddy v. Geran, 113 Mass. 378. Hall v. Southwick, 27 Minn. 234. Moreover, the writing that was executed by the . mortgagee at the time she received the amount due had some tendency to show that what she received came from the defendant.
Decree affirmed.