87 Mass. 62 | Mass. | 1862
The courts regard the interests of mortgagees with great liberality, for the purpose of effectually securing to them the performance of the contract which the mortgage was originally designed to secure ; and they allow no change of the form of the indebtedness to discharge the mortgage, where there has been no actual payment or release. Many eases illustrative
Such cases are based upon the fact that at no period of time has there been an actual extinguishment of the indebtedness secured by the mortgage. But it seems equally clear that after an actual payment of the debt, the mortgage cannot be revived by an oral agreement to keep it in force to secure a distinct and independent debt. The recent case of Merrill v. Chase, 3 Allen, 339, is to that effect. The question of the fact of payment is always open, and it is also a good answer to show that the giving up of the notes secured thereby, or a formal discharge of the mortgage, was obtained by fraudulent means, as was held in Barnes v. Camack, 1 Barb. 392, and Grimes v. Kimball, 3 Allen, 518.
Upon recurring to the facts reported in the present case, we find that the original notes secured by this mortgage have been paid and delivered up to the mortgagor, but at a subsequent time, for a new consideration, viz: the loan of a certain sum of money by the mortgagee to the mortgagor, the mortgage not having been cancelled, or any release thereof executed, the mortgagor orally agreed with the mortgagee that the mortgage should be continued in force as security for such new advance of money, and that new notes should be written, corresponding with the-former notes described in the mortgage, with indorsements thereon to reduce the amount to the sum actually lent.
These new notes were not a continuation of the old indebtedness. This being confessedly so, they cannot by force of an oral agreement be legally attached to the previous mortgage.
. This view of the case would be decisive against the defendant, in case any question of title had arisen between him and a subsequent mortgagee, or attaching creditor, or bona' fide purchaser. Such also would be the case, if the question arose upon an action at law, by the mortgagee against the mortgagor, to foreclose the mortgage.
But the plaintiff has sought the aid of this court through a bill in equity, and to such a bill, when it is sought to compel the performance of any act or discharge of any written obligation;
We have treated this bill thus far as if instituted by the original mortgagor, asking this court to require the defendant to execute a quitclaim and release of the mortgage to him. It is
Bill dismissed with costs.