133 Mass. 511 | Mass. | 1882
It has heretofore been held in this Commonwealth, that, where a mortgage was assigned to A. B., trustee, in consideration of money paid by him, trustee, and where the
The defendant in the present case made a loan of money to James Lewis, knowing that the same -was for the personal use of Lewis, and took as security therefor an assignment of the note and mortgage in question. The note ran to Lewis personally, and was by him delivered, though not indorsed, to the defendant. The mortgage ran to Lewis, “trustee as aforesaid,” and the words “trustee for Clara M. Pyne,” which originally followed the recital of the payment of the consideration, had been erased. This mortgage was assigned by Lewis personally, without mentioning his capacity as trustee; the assignment being drawn by the defendant upon a form attached to the mortgage itself. Although the defendant had the mortgage in his hands, and although it was taken by him as security, his attention was not attracted to the words “ trustee as aforesaid,” and he had no actual knowledge of their existence, or of the fact that both note and mortgage represented trust funds held by Lewis.
It cannot be doubted that, if the defendant had read the mortgage, and become aware of the fact that it ran to Lewis as “ trustee as aforesaid,” he would have pursued the inquiry as to
Nor can we think that the omission of the word “trustee” in the note excused the defendant from the duty of examining the mortgage, to see the nature of the title he was taking. The mortgage was a constituent part of his security. It was not only a link in the title which he was taking, but it was itself produced and delivered to him as representing the title. The rule is general, is stated in various text-books, and is recognized in a multitude of cases, that, where a purchaser has notice of a deed, he is bound by all its contents. 2 Sugd. Vend. & P. 775. 4 Kent Com. 179. 1 Story Eq. Jur. § 400. Kerr on Fraud & Mistake (Am. ed.) 240, 241. 2 Pomeroy Eq. §§ 626-628. Asimilar rule has been applied in this State to persons who enter into and accept written contracts. Grace v. Adams, 100 Mass. 505. Monitor Ins. Co. v. Buffum, 115 Mass. 343. The truth appears to be, that the defendant accepted the mortgage without taking pains to read it. If he had read it, he would have discovered all that was necessary for his protection. The law holds him to the legal duty of reading it, and of informing himself of all it contains. He must be conclusively presumed to have performed this duty, and cannot be heard to say that he did not. His legal position is the same as if he had actually read it.
Finally, it is urged that the words “ trustee as aforesaid ” were written obscurely, and in a manner likely to escape observation; and the original mortgage has been submitted to us. It is not