127 Mass. 400 | Mass. | 1879
This is an action by an indorsee of a promissory note signed by the defendants; and the question is, whether the note is extinguished, in whole or in part, by the conveyance to the plaintiff of the equity of redemption of the land mortgaged to secure the note. After the note and the mortgage securing it were made, the defendants conveyed the equity of redemption to Mrs. Rogers by a deed which recites that she assumes and agrees to pay the mortgage and interest. After this conveyance to Mrs. Rogers, the note and mortgage were assigned by the payee to the plaintiff. Mrs. Rogers still later made two mortgages of the premises, which came by assignment to the plaintiff,
On these facts, the defendants contend that they are discharged from liability on the note, on the ground that the mortgage is extinguished by merger of all the titles in the fee simple absolute in the plaintiff; and that the note is extinguished with it. It is undoubtedly true that, in general, when a greater and lesser estate, which together constitute the entire fee, unite in one person, a merger results by operation of law. But it is equally true that in equity such merger is not allowed, except to promote the intention of the party. And the doctrine of equity is adopted at law where the peculiar circumstances of the case require it as an alternative to sending the parties to a court of equity for relief. Accordingly it is established that when the owner of an equity of redemption purchases the mortgage on the premises, such purchase shall or shall not work a merger, as it may be for his interest; and that the strict rule of law will not be permitted to work a manifest injustice. Gibson v. Crehore, 3 Pick. 475. Hunt v. Hunt, 14 Pick. 374. Savage v. Hall, 12 Gray, 363. Kilborn v. Robbins, 8 Allen, 466. McCabe v. Swap, 14 Allen, 188. Hutchins v. Carleton, 19 N. H. 487. And if one buys land by a warranty deed, subject to a mortgage, without any recital that he assumes or agrees to pay the mortgage, he is not bound to do so; and if he takes an assignment of the mortgage to himself, the mortgage is not thereby discharged. Strong v. Converse, 8 Allen, 557. But if he assumes the payment of the mortgage by the deed to him, he cannot after paying it keep it on foot against the mortgagor by an assignment to himself. McCabe v. Swap, ubi supra. See also Putnam v. Collamore, 120 Mass. 454; Carlton v. Jackson, 121 Mass. 592.
In the case at bar, the plaintiff did not assume the payment of the mortgage, when he took the quitclaim deed from Mrs. Rogers, and was not aware of any obligation on her part to pay the mortgage given by the defendants to secure the note in suit. The case differs in this respect from the case of Swett v. Sherman,
In this view of the case, it is manifest that the evidence of the value of the premises was properly excluded; and that there was no question of fact on which the defendants were entitled to go to the jury. Exceptions overruled.