| Mass. | Apr 17, 1874
The only question here raised relates to the amount which the plaintiffs must pay to redeem a mortgage to secure a note for $4000 given by Bowe to Hoxie, under which the defendants claim.
The case is heard upon the bill, answer and agreed statement of facts. It appears that the mortgage and note were originally given to secure Hoxie for an advance of $2560, and an agreement to advance the balance upon certain conditions, given in writing to Bowe the mortgagor. Bowe conveyed his equity to Anderson by deed containing these words, “ subject to my mortgage to Hoxie for $4000, to be assumed and paid by the grantee,” and then while the title was in Anderson, assigned his agreement with Hoxie for a future advance to the other defendant Allen. The plaintiffs claim their right to redeem by a mesne conveyance from Anderson in which the land is described as subject to a mortgage of $4000.
At the time of filing this bill no further advances had been made, but there is nothing to show that the conditions of Hoxie’e agreement to advance might not have been waived by him, or could not have been compb'ed with by Bowe, or by some one in his behalf. In either case, if the advances were made, Hoxie would be entitled to hold the mortgage as security for its full amount as against those who show no higher equity than the plaintiffs disclose. Hoxie’s liability under the agreement was not terminated by the sale of the equity; it was still outstanding in the hands of Bowe’s assignee, the defendant Allen. There is no
The plaintiffs are entitled to redeem on the payment of the $4000 note with interest and costs. Decree accordingly..