214 Mass. 552 | Mass. | 1913
The actual consideration of the mortgage, even if it purported to be security for the payment of the plaintiff’s promissory note, could be shown by paroi evidence. Gray v. McClellan, ante, 92.
The defendant having become bound to preserve and protect the plaintiff’s title, a breach which goes to the essence of the contract, or misconduct in discharge of the trust, entitles her to full relief, which may include the assessment of damages. Ginn v. Almy, 212 Mass. 486, and cases cited. Ashley v. Winkley, 209 Mass. 509. While the evidence has been reported the usual rule obtains. Manheim v. Woods, 213 Mass. 537. And the judge’s findings of fact not being plainly wrong, it is manifest, that, although he paid the taxes and discharged the tax title, the defendant instead of paying the mortgage to Johnston procured an assignment to himself. It is also found, that acting in bad faith as fully pointed out in the sixth paragraph of the memorandum, he permitted the mortgage to Travers to be foreclosed, causing the plaintiff, who was given no opportunity to safeguard her rights, to lose a valuable interest in the equity of redemption. If the question of damages had not been in issue, the defendant, upon payment of the amount of the mortgage to Johnston, the taxes, and the incidental expenses connected with the examination of the title, should be ordered to discharge this mortgage, and also the mortgage given to him by the plaintiff, which, through his own deliberate failure in performance, left no debt remaining unpaid or obligation to be performed. Walton v. Ruggles, 180 Mass. 24. Indeed it would be anomalous, if after losing her estate through the defendant’s contracturai breach, as well as by abuse
Ordered accordingly.