266 Mass. 366 | Mass. | 1929
The plaintiff by this suit seeks to compel the defendants to discharge a mortgage in which each has an interest on a parcel of land now owned by the plaintiff. The case was referred to a master. No exceptions were taken to his report and it has been confirmed. The facts as found by him must be accepted as true. The parcel of land, at the time of its purchase by the plaintiff and at present, is subject to a first mortgage for $7,000 held by a savings bank and to a second mortgage now securing an indebtedness of $8,100 running to the defendant Epstein and by her assigned to the defendant Jacobs as collateral security for indebtedness from her to him. This indebtedness is substantially smaller than the amount due on the second mortgage. The second mortgage contained this clause: "The owners of the equity of redemption shall have the right to raise a larger first mortgage in some Savings Bank or Trust Company in said Worcester and retain for themselves the excess of the new first mortgage
The plaintiff was bound, in order to obtain the benefits of the Epstein mortgage as to its temporary discharge, to perform all the provisions of that mortgage resting on the mortgagor. One of these was to pay all taxes assessed on the mortgaged premises. This provision was designed to protect the security in the hands of the mortgagee so that it should not be lessened by a hen for overdue taxes. The provision in the Epstein mortgage of which the plaintiff seeks specific performance is not an independent stipulation but it is an essential part of the whole contract set forth in the mortgage. The plaintiff cannot demand as of right the aid of a court of equity to enforce in its own behalf the obligation of the defendants while disregarding the equally binding obligation resting upon it to pay taxes. Reed v. Jones, 133 Mass. 116,120,121. Hammond v. Lovell, 136 Mass. 184, 186. Barrett v. Britton, 258 Mass. 383, 386.
The plaintiff contends that the proceeds to be derived from the mortgage given to the Bancroft Trust Company were to be used, not only for the purpose of paying off the prior mort
Decree affirmed.