Lydon v. Campbell, 198 Mass. 29

Lydon v. Campbell

198 Mass. 29 | Mass. | 1908

Hammond, J.

Under the circumstances disclosed in the record, the payment of the mortgage debt by Patrick Campbell with his own money, in discharge of the obligation imposed upon him by the deed under which he held the property, was an extinguishment of the mortgage debt; and that is so even if there be an assignment of the mortgage with the intent to keep it alive. The doctrine is thus stated by Shaw, C. J. in Brown v. Lapham, 3 Cush. 551, 554, 555: “ If the money is advanced by one whose duty it is, by contract or otherwise, to pay and cancel the mortgage, and relieve the mortgaged premises of the lien, a duty in the proper performance of which others have an interest, *33it [the writing given upon the payment] shall be held to be a release, and not an assignment, although in form it purports to be an assignment. When no such controlling obligation or duty exists, such an assignment shall be held to constitute an extinguishment or an assignment according to the intent of the parties; and their respective interests in the subject will have a strong bearing upon the question of such intent.”

This case is governed by the first rule above laid down. At the time of the payment, there was no intervening estate or interest between the interest of the mortgagee and that of the owner of the equity. The mortgage debt having been extinguished by the payment under these circumstances, the owner of the equity could not keep it alive even by causing an assignment to be made, even to a third party who contributed in no way to the payment. Among the cases bearing upon the general question, see Carlton v. Jackson, 121 Mass. 592, and cases there cited; McCabe v. Swap, 14 Allen, 188; Putnam v. Collamore, 120 Mass. 454. There being no outstanding mortgage, the bill cannot be maintained as a bill for foreclosure.

It is urged that, even if the mortgage debt has been paid, yet it sufficiently appears that the testator supposed it was a lien upon the land, and that by his will he intended to make the amount which should have been due upon the debt, if it had not been paid, a charge upon the land in the hands of the devisees, his sons John and James; that the devisees, having accepted the devise, hold it subject to the charge, and that the bill is broad enough to authorize a decree declaring a lien upon the land for the amount claimed. But we think that the whole framework of the bill is inconsistent with that view of the case, and that in the present form of the bill this view of the plaintiff’s rights is not before us for determination.

Bill dismissed.