102 Mass. 326 | Mass. | 1869
The deed from the tenant to the Ladies’ Collegiate Institute and the mortgage back from them to him, executed simultaneously and as parts of one transaction, must, as between the parties to them, be construed together, and in such a manner as to give full effect to both. Cloyes v. Sweetser, 4 Cush. 403. Pomeroy v. Latting, 15 Gray, 435. Under them, the tenant had two distinct interests in the estate; the one the right of entry upon any future breach of the condition in the deed; and the other the mortgage title as security for his debt. The deed being referred to in the mortgage, any one subsequently acquiring the mortgage title took with notice of the pro> visions of the deed. Pike v. Goodnow, 12 Allen, 474.
The whole case therefore turns upon the construction of the assignment from the tenant to the demandant. And we are all of opinion that the intention of both parties to the assignment, as manifested by the terms in which it is expressed, was to convey the tenant’s mortgage title only. The leading words “ sell, assign, transfer, set over and convey,” “ said mortgage deed, the rea estate thereby conveyed, and the promissory note, debt and claim thereby secured,” accord with the usual form of assigning such a title, specifying separately the mortgagee’s interests in the deed itself, in real estate, and in personal property or choses in action, and passing the instrument of mortgage, the interest in land which has thereby vested in the mortgagee, and
Assuming therefore, without deciding, that the further words in the assignment of the mortgage, “ subject nevertheless to the conditions therein contained,” would not of themselves include the conditions in the deed executed simultaneously with the mortgage and referred to in it as describing the land, the demandant shows nothing in the terms or legal effect of the assignment of the mortgage, to restrain or estop the tenant from enforcing his right of entry for breach of condition in that deed and, according to the terms of the report, the
Case must stand for trial.