Davis v. Bean

| Mass. | Jan 15, 1874

Wells, J.

Upon the hearing for conditional judgment, the court determines “ how much is due to the plaintiff on the mortgage.” Gen. Sts. c. 140, § 5.

In Vinton v. King, 4 Allen, 562, it was held that “the defendant may show the same matters in defence (the statute of limitations excepted, 19 Pick. 535) which he might show in defence of an action on the note.” The exception should also include matters of set-off. Bird v. Gill, 12 Gray, 60. Holbrook v. Bliss, 9 Allen, 69, 77.

In Wearse v. Peirce, 24 Pick. 141, the defence of want of consideration for the notes secured by the mortgage was allowed to prevail in the trial of the issue to the jury. And in Freeland v. Freeland, 102 Mass. 475" court="Mass." date_filed="1869-10-15" href="https://app.midpage.ai/document/freeland-v-freeland-6415817?utm_source=webapp" opinion_id="6415817">102 Mass. 475, the defence on that ground was held to be applicable to the hearing on a motion for conditional judgment. The latter decision apparently contemplated the case of a partial failure only.

We see no reason why any defence which relates to the validity of the debt, or to the consideration of the notes secured by a mortgage, should not be admitted to defeat or limit the right of the mortgagee to enforce his claim against the land of the mortgagor, as well as when he seeks to enforce it against the mortgagor personally. If the defence goes to the whole debt, it may be tried upon the main issue. If it is partial only, then it must necessarily be heard with the motion for conditional judgment.

The defence in this case relates to the consideration of the notes secured by the mortgage; and is available, by way of recoupment, in a suit upon the notes themselves. Davis v. Bean, ante, 358. The amount of debt justly “ due to the plaintiff on the mortgage,” is whatever sum he is entitled to recover upon those notes; and that must depend upon the rights of the parties at the time of the investigation, and not upon the mode in which, or the tribunal by which, the investigation is conducted. We are of opinion that the deduction was properly allowed; and the

Exceptions are overruled.