255 Mass. 206 | Mass. | 1926
In these two cases it was agreed that the Sherwoods owned certain real estate which they had mortgaged, for $7,250, in 1913. In January, 1922, they executed a second mortgage subject to the prior mortgage on the same property to one Griffin. In June, 1922, Griffin foreclosed his mortgage and purchased the Sherwoods’ equity of redemption at the foreclosure sale. They later attached
Clarence A. Warren purchased the first mortgage in order to protect the interests of Mr. and Mrs. Griffin. He has begun foreclosure proceedings. Mr. Bond, as attorney for the Sherwoods, has' offered to pay Mr. Warren all sums due on the mortgage provided Mr. Warren would assign the mortgage to him. Annie Griffin, wife of the second mortgagee, has also offered to pay Mr. Warren the sum due on the mortgage provided it be delivered to her to be kept alive for her benefit.
In Sherwood v. Warren, the bill was dismissed; and it was ordered that the first mortgage be surrendered to Mr. Bond, who had intervened in the proceedings, upon payment of the amount due on the mortgage. The intervening petition of Annie Griffin was dismissed. Mr. Warren and Annie Griffin appealed.
In Warren v. Sherwood the plaintiff holder of the mortgage seeks to reach and apply the interest of the Sherwoods in the real estate standing in the name of Mr. Bond, their attorney. The bill was dismissed and the plaintiff appealed.
The principal question involved in this controversy is, whether Annie Griffin, who has an inchoate dower interest in the premises, or Mr. Bond, the purchaser of Griffin’s interest in the real estate, should receive a surrender of the first mortgage with the right of subrogation.
The decree in each case was right. Mr. Bond was the owner of the equity; it would be inequitable to allow Mrs. Griffin to be subrogated to the right of the mortgagee. When a purchaser pays off a mortgage to which the right of dower would be subject, to clear the estate of the encumbrance and not because obliged to pay the mortgage debt, and takes an assignment of the mortgagee’s interest, as explained by Wells, J., in McCabe v. Swap, 14 Allen, 188, 190, 191, the purchaser may stand on the mortgage title and no
When Mr. Bond purchased Griffin’s interest at the execution sale, he held an unqualified title in the equity, to the same extent as if Griffin conveyed directly to him. Barker v. Parker, 4 Pick. 505. Being the owner of the equity, Mr. Bond had the right on payment of the amount due on the mortgage to be subrogated to all the rights of the mortgagee. Taylor v. Wilcox, 167 Mass. 572, 575. See Swett v. Sherman, 109 Mass. 231, 233.
One of the contentions of Mrs. Griffin is that Mr. Bond cannot be subrogated to the place of the mortgagee, because subrogation does not he where the purchaser is paying off his own debt, — assuming that Mr. Bond purchased the equity as the attorney of the Sherwoods, the original mortgagors. After the conveyance of the equity of redemption to Griffin, the relation of the Sherwoods to the mortgagee became in a sense that of sureties, and if they had paid the note they would be entitled to be subrogated. To quote the language of Mr. Justice Morton in North End Savings Bank v. Snow, 197 Mass. 339, at page 341: “ . . . in a case like the present the mortgagors are not regarded as being, in the strict sense of the word, sureties, but as being such only in the sense that they are entitled to have the security regarded as the primary fund for the payment of the debt.” Pratt v. Buckley, 175 Mass. 115, 116.
The agreed statement of facts shows that Mr. Bond held the land as security for payment for the indebtedness of the Sherwoods to him. He would not be protected in his title if he was without the right of subrogation. For, if Mr. Bond paid the mortgage indebtedness and had no right of subrogation, Griffin might redeem from the execution sale, and Mr. Bond would then be left without protection for the amount paid. Such a result would be clearly inequitable. Hermanns v. Fanning, 151 Mass. 1, 3, 4.
Ordered accordingly.
