Sheddy v. Geran

113 Mass. 378 | Mass. | 1873

Wells, J.

The instructions asked for by the demandant should have been given. After the assignment of the note and mortgage to the demandant, with the knowledge and assent of the tenants, no transaction between the tenants and Mary Hall, even if intended as payment of the original debt, could defeat the right of the demandant to enforce the note and mortgage.

Under the arrangement, to which all three were parties, the transaction was not a payment of the original debt, but a payment of the consideration upon which Mary Hall consented to transfer the note and mortgage to the demandant. It discharged Mary Hall’s right to a return of the securities to herself when the purpose of the transfer to the demandant should have been accomplished, and all further right to control the disposition thereof. But the note remained a valid security to the demand-ant, and may be enforced by her. She retained the beneficial interest, notwithstanding the transfer back to Mary Hall for a temporary and special purpose, and now has both the beneficial interest and the legal title. New trial ordered.