Macomber v. Bremer

198 Mass. 20 | Mass. | 1908

Hammond, J.

The debt secured by the first mortgage was in fact and in law paid by the delivery of the two notes respectively secured by the second and third mortgages. Such was the intention of all parties; and the mortgagors were entitled to the return of the note and to a discharge of the mortgage. That being so, the plaintiff Macomber is not bound to pay anything to redeem from the mortgage given to secure that debt. There is nothing in Grimes v. Kimball, 3 Allen, 518; S. C. 8 Allen, 153, or the other cases cited by the defendant Bremer, inconsistent with this view. This is not a case of a contest between equitable estates, as in Cave v. Cave, 15 Ch. D. 639, and other similar cases. The first mortgage was paid and is to be treated as though discharged, and hence the interest of the mortgagors at the time of the delivery of the second mortgage is to be regarded as an estate in fee, and the legal estate in the land was conditionally conveyed in the second mortgage and held by the plaintiff upon the assignment and delivery of the papers to her. Nor is this a case of a mere change in the form of the debt. The transaction was more than that. The second and third mortgages were given upon the express agreement that they “ operated to satisfy, extinguish and pay ” the first mortgage, which all parties intended thereby to discharge. After this transaction the first mortgage and note did not belong either to Berry or to his cestuis que trust. Both his hold and that of his cestuis que trust upon the land, so far as resting upon this first mortgage and note, were extinguished.

The plaintiff is the rightful owner of the second mortgage and the debt thereby secured. Bremer cannot follow the trust property of his beneficiaries into the mortgage debt assigned to the plaintiff, because the plaintiff is a bona fide purchaser for value of the note secured by that mortgage.

There being no cross bill the question whether Bremer can follow the trust property in the $700 note does not arise, nor does he argue before us to the contrary.

Decree affirmed.