Smith v. Hitchcock, 130 Mass. 570

Smith v. Hitchcock

130 Mass. 570 | Mass. | 1881

Soule, J.

The plaintiffs made their original bargain with Moses Smith, and took their deed from him with full knowledge that his only title to the premises in controversy was as mortgagee, and that the deed did not give them a valid and indefeasible title. They relied on his covenants and their expectation that he would get a perfect title through negotiations then pending with his mortgagor, the owner of the equity. In the *573most favorable view for the plaintiffs which we can take of this transaction, they took only an equitable assignment of the mortgage which Smith held, to the amount which they paid for the land in dispute, which the master has found to be $112.50. Bruce v. Bonney, 12 Gray, 107. If Moses Smith had afterward become the owner of the equity, his new title would have enured to the benefit of the plaintiffs, and their title would have become perfect. But the transaction gave the plaintiffs no right, legal or equitable, to or in the estate of the mortgagor. The defendant Hitchcock had a right, notwithstanding his knowledge of all that had taken place between the plaintiffs and Smith, to buy the estate of the mortgagor, and to hold it as his own, without regard to the expectation of the plaintiffs, when they took their deed, that their title would be afterward perfected, by an arrangement between Smith and the mortgagor. Hitchcock accordingly bought the mortgagor’s estate in the premises, and the question is, Was his right therein so affected by what occurred between him and Lamberton, one of the plaintiffs, that he ought not to be permitted to maintain his writ of entry against the plaintiffs, or that they are entitled to have a release from him of all interest in the land in dispute ?

The master’s report shows that Hitchcock never agreed to make any conveyance to any of the plaintiffs, and that he did agree with Lamberton that Lamberton should buy the mortgage which Moses Smith held with money furnished by Hitchcock, and take an assignment to himself, and then release to Moses Smith the mortgage so far as it related to the land in dispute, and then assign the mortgage on the remaining part of the land to Hitchcock. This Lamberton did, precisely as agreed, except that, instead of assigning the mortgage to Hitchcock, he discharged it subject to the partial discharge given to Moses Smith. The effect of this on the rights of the parties was the same as if the mortgage had been assigned. As there was no intervening estate between the mortgage and the estate which Hitchcock bought of the mortgagor, the mortgage interest would have been merged in the fee, even if an assignment had been made to Hitchcock, subject only to the equitable interest of the plaintiffs under their deed from Moses Smith; and this equitable interest is kept alive under the existing state of the paper title, and the *574facts found by the master. It is a matter of indifference to the plaintiffs, therefore, whether the mortgage be discharged or assigned, unless the fact that the purpose of Lamberton and Hitchcock to save the rights of the plaintiffs is to be carried into effect to the extent of compelling a conveyance by Hitchcock, notwithstanding the fact that he did not undertake to make such conveyance, even by an oral agreement. To this relief the plaintiffs are not entitled. It is not found as a fact that Lamberton and Hitchcock agreed that they would buy the mortgage and the equity of redemption, and then make such conveyances as would perfect the title of the plaintiffs to the land in dispute. If that had been the agreement, and such things had been done under it as to amount to a part performance on the part of Lamberton, the question presented would have been quite different from that now before us. The agreement actually made was merely that, when Lamberton had bought the mortgage with Hitchcock’s money, he might, before assigning it to Hitchcock, release it so far as it concerned the land in dispute. The fact that this agreement when executed failed to accomplish the result which the parties to it had in mind, does not entitle the plaintiffs to have another agreement substituted for it, nor to have the desired result accomplished at the expense of the defendant Hitchcock by means of compelling conveyances by him which no one contemplated that he should be called on to make.

As the plaintiffs have an equitable interest in the mortgage, to the amount paid by them for the land in dispute, by virtue of their deed, and as this interest would not be a defence to the writ of entry sued out by Hitchcock, it is proper that he be enjoined against prosecuting that writ till he has paid the plaintiffs that amount. To this extent only is the bill sustained.

Decree accordingly.