1. The respondents contend that the testator left all of his land to his widow, absolutely j and if this is so, the title of the petitioners to the lands of which partition is sought wholly fails. But such is not the true construction of the will. The two clauses most material to be considered are the following, one of which is near the beginning, and the other near the end of his will: “ Firstly, I give to my wife, Sarah, my dwelling-house as now stands, together with all the land, furniture, silver plate, spoons, notes, mortgages with the notes- to- the same, my books, papers, etc., chattels, at the time of my decease. . . . Lastly as to all the rest, residue and remainder of my personal and real estate, goods and chattels, of what kind and nature soever, I give and bequeath the same to my said wife, Sarah, during her life only.’r And appended to the will are the words, with reference to the latter clause, “during her life only,— my will and desire/’ The testator owned the dwelling-house and other real estate. The words, “ together with all the land,” in the first clause, obviously mean all the laud connected with or belonging to the dwelling-house. The two clauses stand perfectly well together. The first gives to her in fee the dwelling- „ house and the land connected therewith; the latter clause gives the other real estate to her for life, and leaves the remainder undisposed of. It follows that the petitioners are not cut off from maintaining their petition by anything contained in the will.
2. As to three lots of land described in the petition, the same being a portion of a larger lot known as No. 10 Howard Street, the respondents admit that they were owned by the testator at his decease, and that the petitioners are entitled to partition thereof, unless their title was devested by a sale for taxes to Benjamin G-. Boardman, junior, the father of the respondents. The taxes were assessed in 1857, and the sale was made in 1859.
Owing to the lapse of time and other causes, it was found impossible to produce other evidence than what may be gathered from the collector’s notice or advertisement and his deed. Upon examination of these, it appears to us that the three lots were sold together for one integral sum. The notice shows nothing either way, being consistent with either mode of sale. The deed recites but one sum as the consideration money paid “for the discharging of said taxes and intervening charges ” ; it also says, “ no person appearing to take a less quantity of said lots for said taxes and charges,” as if the lots, taxes, and charges all went together; it adds, “ an advertisement for the sale of which for the non-payment of said tax and incidental charges I caused to be published,” etc., as if the taxes on the several lots were all treated as one tax. “ The sale ” is also referred to three times, in the singular number. We find nothing whatever to show that the lots were sold separately, unless it be the recital of the several assessments, and the covenant of the collector, that he observed the directions of the law; but these are insufficient to outweigh the indications found elsewhere in the deed. We are therefore of opinion that the tax sale was void, and that the petitioners are entitled to partition of the three lots therein embraced ; and this renders it unnecessary to consider the question,, which has been argued, whether the respondents can avail themselves of a title so obtained by Benjamin G. Boardman, Jr., who was a tenant in common with Charles W. Boardman, under whom the petitioners claim.
3. In reference to certain other lots whereof partition is sought, namely, the two lots on North Oak Street, as it was formerly called, the respondents contend that the title thereto of Benjamin G. Boardman, senior, failed, so that none of the parties to the present proceedings appear to have any title, and that therefore the petitioners cannot maintain the petition for partition of the same. The title of said Boardman was derived as follows.
The general rule is familiar, that an assignment or transfer of a mortgage debt carries with it an equitable right to an assignment of the mortgage. Sturtevant v. Jaques, 14 Allen, 523. Morris v. Bacon, 123 Mass. 58. Batesville Institute v. Kauffman, 18 Wall. 151. Carpenter v. Longan, 16 Wall. 271. In some jurisdictions it is held that the mere transfer of the debt, without any assignment or even mention of the mortgage, carries the mortgage with it, so as to enable the assignee to assert his title in an action at law. 2 Washb. Real Prop. (3d ed.) 114, 118, and cases there cited. This doctrine has not prevailed in Massachusetts, and the tendency of the decisions here has been, that in such cases the mortgagee would hold the legal title in trust for the purchaser of the debt, and that the latter might obtain a conveyance by a bill in equity. Wolcott v. Winchester, 15 Gray, 461, 464. Young v. Miller, 6 Gray, 152. But a payment of the debt at or before its maturity devests the mortgagee of his legal estate, and the mortgagor is then in of his old estate, without any release and without any process for redemption ; Holman v. Bailey, 3 Met. 55; and, under our system of foreclosing mortgages, a payment of the debt after its maturity has nearly or quite the same effect. Nothing being thereafter due to the mort
No case has been cited, and we have found none, where the effect of an assignment like that of Gass to Boardman has been considered. But it is plain that after making it Gass retained no title which he could assert in any form of proceeding. The whole beneficial interest was in Boardman. The utmost that could be considered as remaining in Gass was a bare technical title in the reversion after Boardman’s death; and this it would have been his duty at any time upon request to convey to Board-man, without any further payment, or any terms or conditions whatsoever. There can be no doubt that the assignment was intended to convey the whole title of Gass. Under it Boardman had a right to demand and receive payment in full of the mortgage debt, for his sole use. By the bare act of payment of the mortgage debt to Boardman, the mortgagor would have regained title, as already shown, and the title of both Gass and Board-man would have been cut off. By a failure to make payment to Boardman within three years after an entry by him to foreclose, the right of the mortgagor to redeem the premises would be cut off. The assignment was under seal, and was duly executed and acknowledged; it included an absolute title to the mortgage debt, and we see no sufficient reason for holding that it did not also carry the whole title of Gass to the mortgaged premises, although it did not in terms run to Boardman’s heirs. It is more in consonance with the true relations of the parties, and with substantial justice, to hold that when a mortgagee of land, by a single instrument duly executed under seal and acknowledged, makes an absolute assignment of his mortgage debt and of the mortgage, such assignment is sufficient to vest in the assignee the full legal title of the mortgagee to the mortgaged premises, although no words of inheritance are used.
No particulars have been specified in respect to which the certificate of entry by Newell was insufficient, except that it did not show his authority to act for Boardman. Such authority,
The result is, that the petitioners are entitled to partition of all the lots embraced in their petition.
So ordered.