168 Mass. 116 | Mass. | 1897
This is a bill to redeem a mortgage conditioned for the payment of the sum of twenty-two hundred dollars and interest. At the same time with the making of the mortgage an agreement under seal was made by the mortgagor and the mortgagee and her husband, by which, after referring to the mortgage, the former agreed to finish a house upon the mortgaged land, the latter agreed to furnish the material, the mortgagor covenanted to pay the cost of the material and eleven hundred dollars for the land, and it was then provided that the cost of the estate and the cost of the material, “ whether more or less than said twenty-two hundred dollars, shall be received in payment of said note and in discharge of said mortgage.” The sum due under this agreement is over four thousand dollars, and the holder of the mortgage, who is an assignee standing in the shoes of the mortgagee, contends that the plaintiff is entitled to redeem only on paying the whole amount. The plaintiff claims the right to redeem on paying the sum mentioned in the mortgage. The case was sent to a master, and the Superior Court entered a decree in accordance with the plaintiff’s view. The defendants appealed.
If the agreement purported to enlarge the amount of the mortgage, the question would have to be decided whether the express stipulation in the mortgage that it should be void on paying a certain sum could be contradicted by a contemporaneous agreement. Flynn v. Bourneuf., 143 Mass. 277. And that question would not be disposed of by the cases which decide
Decree affirmed.
