152 A. 575 | Conn. | 1930
A mortgagor who has conveyed his equity of redemption has a right to have the mortgaged property applied to the payment of the mortgage debt so far as necessary for his protection against personal liability for the debt secured. 2 Jones on Mortgages (8th Ed.) § 839. The mortgagee is not, however, obliged to tender an assignment of the mortgage security as a condition of recovery upon the note.Barnes v. Upham,
That was the extent of the defendant's rights in this action. He was not harmed by the failure to receive notice of the plaintiff's intention to release the third mortgage. He was entitled in this action to set off against the amount due on his note the value of the security which was lost by the plaintiff's quitclaim deed of its interest in the property to Bertha Soldan. He did not claim such set-off in his answer, and, if he had, it would not have availed him, since the court has found that the security was absolutely without value, and that finding is not attacked. The case ofTownsend Savings Bank v. Munson,
The defendant further claims that the plaintiff is not entitled to judgment on the note because it still retains an interest in the property by virtue of the agreement made with Soldan, the second mortgagee, at the time that it quitclaimed its interest in the property to his wife, and that the value of that interest cannot be determined until February 28th, 1931. That writing was merely the personal agreement of Soldan, who was not the owner of the equity of redemption, and the plaintiff did not thereby acquire any interest in the property itself. If the plaintiff should hereafter receive anything under the Soldan agreement, applicable upon the third mortgage, it concedes that the defendant, having paid the note, would be entitled to any such avails of the mortgage given to secure it. The conveyance of the plaintiff's interest in the property to Bertha Soldan, and the taking of the agreement from her husband, did not have the effect of discharging the defendant from liability upon his note in this action.
There is no error.
In this opinion the other judges concurred.