175 Mass. 115 | Mass. | 1900
This is an action of forcible entry and detainer brought under the Pub. Sts. c. 175, § 1. On March 3, 1893, Alice M. Pratt was the owner in fee of the property in dispute, and she mortgaged it to one Gould to secure the payment of $850. On March 7 of the same year she conveyed the premises to one Robinson, by a deed which recited that the land was conveyed subject to a mortgage, and which excepted the mortgage from the covenant of warranty and the covenant against incumbrances. Afterwards the mortgagee notified her that the note was unpaid, and that if it was not satisfactorily arranged at once, she should foreclose the mortgage and hold her responsible for any deficiency in the payment of the note. Ac
We think it very clear that they did not. When the estate was sold subject to the mortgage, the mortgage was left as a primary charge upon the land, although the grantee did not make herself personally liable for it by assuming it. The grantor, who was the maker of the mortgage note, was entitled to have the mortgaged property applied in payment of it. To protect her own interests she might take an assignment of the mortgage and the debt, and enforce the mortgage by a foreclosure as effectually as if she was not the maker of the note. Gibson v. Crehore, 3 Pick. 475, 482. Barker v. Parker, 4 Pick. 505. Swett v. Sherman, 109 Mass. 231. Tucker v. Crowley, 127 Mass. 400. Kinnear v. Lowell, 34 Maine, 299. Baker v. Terrell, 8 Minn. 195. Willard v. Harvey, 5 N. H. 252. The question whether the debt, considered as a foundation for the mortgage title, had been cancelled and discharged, is very different from the question whether the personal liability of the maker of the note had been terminated, so that it would not exist in favor of one to whom the mortgage and note should subsequently be transferred for a valuable consideration.
It was important to know whether the money was given by Alice M. Pratt as a voluntary payment of a debt for which she was liable, or whether it was to obtain the benefit of the mortgage security for a debt which was a charge upon the land. The facts agreed in regard to her intention in paying the money were confirmatory of the apparent effect of the debt of the parties, and were unobjectionable. Judgment affirmed.