Thе petitioner having waived his exceptions to the master’s report, and the evidence not having beеn reported, the question is whether the findings and rulings of the trial judge were warranted by the report and the inferenсes of fact therefrom which could be properly drawn. Kennedy v. Welch,
It is settled in this Commonwealth that as between the parties a mortgage is regarded as a conveyance in fee for the protection of the mоrtgagee, but until foreclosure, the mortgage in equity constitutes a lien for security of the debt or obligation, subject to which the property can be dealt with as the estate of the mortgagor. Bailey v. Wood,
The master in tracing the alleged titlе to the second parcel finds, that the note and mortgage under which the petitioner claims, given by Blazo to Prescott, were regarded as paid by a subsequent mortgage given by Blazo and his wife, who by mesne conveyances had become an owner with him of the equity of redemption, to one Brown for a similar amount. This finding is well warranted, for it appears that after Brown’s death the mortgagors conveyed their interest to Susan P. Adаms, his only heir, and that for her benefit the Blazo-Prescott note and mortgage were transferred by assignment and dеlivered to her husband
It will be convenient to discuss the remaining questions as to this pаrcel in connection with the petitioner’s alleged title to the first parcel. The common grantor wаs Blazo, who upon acquiring title gave a mortgage with power of sale to the grantor presumably to sеcure the purchase money, who assigned the mortgage to Coffin, and more than twenty years thereaftеr this mortgage was assigned to Ellen S. Murphy by the administrators with the will annexed of his estate. The report states that “no mortgage deed, note or previous assignment was in the possession' of or was delivered, or indorsed оr transferred, by them to said Murphy,” and the master’s explicit findings are, that without payment of any consideration she procured the assignments of both mortgages, under the foreclosure of which the petitioner claims title to both parcels, by falsely representing that the assignments were necessary “to clear up the title” to the lands in which she is not shown to have had any pecuniary or other interest. While the judge’s findings, that from the laрse of time and the disappearance or non-existence of the note and mortgage relating to the first parcel, the various transactions as to the second parcel, and the undisputed possession of the premises by Brown and his heirs for over twenty years before the setting on foot of the fraudulent аttempt to obtain the lands, amply support his conclusion, that the presumption of payment had not bеen overcome, the petitioner, who is not found to have been a participant or to have known of Murphy’s scheme, contends, that as the assignment to Adams had not been recorded when the assignment tо Murphy was procured, and payment in each instance having been made after the notes were оverdue, he had the better title. Howland v. Shurtleff,
It is plain, however, that if at the date of the assignments to Murphy the debts secured.had been paid, as the judge found, there was no default or breach of condition, and under such circumstаnces the foreclosure in each instance, whether by entry or by sale under the power, did not pass a good title either
The petitioner having failed to show that he owned an estate, or any easement or rights in fee simple in the lands described in the petition, the decree refusing registration should be affirmed. R. L. c. 128, §§ 1, 18, as amended by St. 1905, c. 249, §§ 1, 2. Baxter v. Bickford,
Ordered accordingly.