Pond v. Eddy

113 Mass. 149 | Mass. | 1873

Endicott, J.

The master has found that the assignments of the several mortgages to the defendant by deeds absolute in form were in fact made as collateral security for a loan by the defendant to John F. Pond. There was evidence before the master which would warrant such finding, and we see no reason for disturbing his report in that respect.

The. defendant also excepts to the admission of parol evidence to establish the fact, that such was the real character of the transaction. Upon the other evidence reported the master might well have found, independently of the parol proof, that these mortgages were assigned as collateral. The defendant gave receipts to Pond upon taking the assignments, reciting that the mortgages were to be used for the benefit of Pond; he afterwards made advances to Pond under this arrangement; and in October following the parties had a settlement, and the sum being then ascertained which Pond owed the defendant growing out of this transaction, Pond gave his note for that amount, which the defendant still holds. These acts and papers indicate clearly the character of the transaction, and that it was not intended as an absolute conveyance, but was collateral to a debt. They determine, what is the chief inquiry in such cases, whether a debt was created by the transaction, and continued and kept alive afterwards. Eaton v. Green, 22 Pick. 526. 1 Sugd. Vend. (8th Am. ed.) 302. But the master’s finding appears to be based upon all the evidence, and the parol proof may have influenced his decision.

It is now well settled that such evidence is competent, “ not to vary, add to or contradict the writing, but to establish the fact of inherent fault in the transaction or consideration, which affords ground for a court of equity to avoid the effect of the writing by restricting its operation or defeating it altogether.” Campbell v. Dearborn, 109 Mass. 130. Jackson v. Stevens, 108 Mass. 94. Newton v. Fay, 10 Allen, 505.

The plaintiff had acquired through sundry mesne conveyances the right of John F. Pond to redeem the land so conveyed There is no evidence of laches on her part from which the court can find the delay in bringing the suit unreasonable, or that the defendant has suffered thereby. In whatever form the defendant now holds that which was originally assigned to him as collateral, the same character attaches to it, whether it be money coming to him from a sale of some of the lots, or whether the mortgage title on other lots may have become absolute by foreclosure. The master having found upon a statement of the account what sum is due to the defendant, upon payment of that sum by the plaintiff, the defendant must convey his interest in the remaining lots to the plaintiff. ° Decree accordingly.