Blodgett v. Hildreth

90 Mass. 186 | Mass. | 1864

Dewey, J.

The respondent held the title of Jephtha Cummings as mortgagee of John W. Swallow, and as such mortgagee, if the title be found to be a valid one, he may effectually defeat this petition for partition, while such mortgage is outstanding. Fuller v. Bradley, 23 Pick. 9. This title is held by the respondent under an assignment, and not as a discharged mortgage, giving rights of contribution as against co-tenants.

Various objections are taken to this title. 1. It is said that it was not recorded at the time of the decease of Sophronia Swallow, who held the same in part as heir at law, and in part by releases from her co-heirs. As against purchasers or attaching creditors of the mortgagor, this objection of want of registry might be fatal. But the mortgage was valid and effectual as against the mortgagor and his heirs, without such registry. Rev. Sts. c. 59, § 28. The mortgage deed was therefore valid as against Sophronia Swallow and her three sisters, whose only claim was that of heirs at law of John W. Swallow. The petitioners make no other title than one through Sophronia Swallow and other heirs at law, and can take no better title than the mortgagor had.

2. It is urged that the acquisition of the mortgage title by Lucinda Hildreth, while an owner of a moiety of the equity of redemption of the same, operated to discharge the mortgage, and only left in her the right to compel contribution from the other co-tenants of the equity. This mortgage was not paid, but merely assigned, and therefore raises no question of the right of the various parties to have this purchase treated as other than an assignment. If it operated as a merger as to the moiety of Lucinda Hildreth, it left the mortgage in full force as to the other portions of the estate, and this would be a sufficient foundation for the objection to the partition. The facts do not present the case provided for in Gen. Sts. c. 136, § 43.

3. It is then objected that one tenant in common cannot purchase an outstanding title, or incumbrance upon the joint estate, for his exclusive benefit, and assert the same to the prejudice of his co-tenant in any way. That principle cannot be properly applied to a purchase of an outstanding mortgage upon the join! estate. Such a title may temporarily enure to the benefit of a co-tenant who elects to make such purchase. But it leaves the other party in the full enjoyment of the right of redemption that he previously enjoyed. He may, as he would have been required to do in the case of the mortgage title remaining in the hands of a third person, pay the whole amount of the incumbrance, and be put in possession of the whole premises, unless the co-tenant elects to contribute his share.

The respondent here sets up a valid title as assignee of the mortgagee, and this is sufficient to prevent the granting of this petition for partition. The fact that he has also an interest as part owner of the equity of redemption does not oust him of his higher and superior title as mortgagee.

In the present aspect of the case, it is unnecessary to consider the further question raised as to the alleged trust in Sophronia Swallow for and in behalf of the wife of the respondent, and how far that alone should defeat this petition. The result is, that the petition cannot be sustained.