159 Mass. 428 | Mass. | 1893
By the mortgage of March 8, 1889, the defendant acquired a defeasible title to the goods, subject to be defeated and revested in the mortgagors upon performance of the conditions of the mortgage. Landon v. Emmons, 97 Mass. 37. Weeks v. Baker, 152 Mass. 20, and cases cited. The payment by the mortgagors, without anything more, of the sum secured by the mortgage, operated of itself to discharge the mortgage; and the mortgagors were thereupon in possession of the goods as of their former title. Parks v. Hall, 2 Pick. 206, 210, 211. Claflin v. Godfrey, 21 Pick. 1. Merrill v. Chase, 3 Allen, 339. Joslyn v. Wyman, 5 Allen, 62. Franklin Bank v. Pratt, 31 Maine, 501. Mead v. York, 2 Seld. 449, 451. The defendant relies upon a reissue to him by the plaintiff of the note for a new loan, accompanied by a redelivery of the mortgage with the agreement that all the rights, privileges, and powers
The defendant has proceeded on the footing of a mortgagee, and by virtue of the right and power supposed to be vested in him as mortgagee. The instrument being inoperative as a mortgage, the sale, which was against the plaintiff’s objection and without his consent, was wrongful. The case might stand differently if the plaintiff were seeking the aid of the court as a court of equity to compel the defendant to cancel and discharge or redeliver the mortgage. Upton v. National Bank of South Reading, 120 Mass. 153. Joslyn v. Wyman, 5 Allen, 62. This, however, is an action at law. A majority of the court are of opinion that the entries should be, verdict set aside, judgment for the plaintiff for $259.82, and interest from date of writ, and it is So ordered.