181 Mass. 442 | Mass. | 1902
The question in this case is whether the plaintiff has a title on which he can maintain this suit. His title rests on a mortgage given by Lawrence McGinnis to the
The reissue of the note with a stipulation that the mortgage should continue in force could not change the title. Nothing less than a new deed could create a new title. Merrill v. Chase, 3 Allen, 339. Joslyn v. Wyman, 5 Allen, 62. Stone v. Lane, 10 Allen, 74. Douglas v. Stetson, 159 Mass. 428. It was held in Merrill v. Chase and in Joslyn v. Wyman, ubi supra, that on a bill in equity to redeem a mortgage, if the mortgagor had agreed by paroi that the mortgage might be held as security for advances beyond the amount originally secured by it, and if the advances had been made in good faith, the mortgagor would not be given a decree for redemption unless he would pay the amount so advanced, the doctrine being that he who seeks the aid of a court of equity must do equity. This is not such a case. The plaintiff who asks for a decree from a court of equity must show a right or title which the court recognizes as a foundation for affirmative action. If it were possible to maintain a bill of this kind on equitable considerations without any legal title, which we do not decide, the plaintiff in this case has no such right as against the defendant. Bresnahan, who took the assignment of this mortgage from the mortgagee at the time of the payment of it, had previously taken a conveyance of the equity of redemption under a foreclosure of a later mortgage, and this he did for the benefit of Lawrence McGinnis, the original mortgagor. The master finds that Jennings, under whom the plaintiff claims, took an assignment of this earlier mortgage from Bresnahan with knowledge that Bresnahan held both the mortgage and the equity for the benefit of Lawrence McGinnis,
The master was directed by the rule to hear this and another case together, and he has embodied in his report facts and findings which relate to the other case. This fact furnishes the plaintiff no good ground of exception. This case is to be decided upon such. of the facts stated in the report as properly pertain to it.1
The mortgage having been satisfied before maturity, it is unnecessary to consider the doctrine of merger, as distinguished from the doctrine already stated which leaves the mortgage a nullity upon performance of the condition according to the terms of the instrument.
Decree affirmed. ■