DICKASON v. WILLIAMS. SUPREME COURT OF MASSACHUSETTS, 1880. Contract upon a promissory note for $3,000, dated March 29, 1870, payable to the plaintiff or order five years after date, and signed by the defendant. Writ dated November 2, 1878. The answer admitted the making of the note, but averred that it was a mortgage note, and that the mortgage had merged. At the trial in the Superior Court, before Wilkinson, J., the following facts appeared in evidence: The note sued on was secured by a mortgage deed, containing the usual power of sale, of land on Henchman Street, in Boston, delivered by the defendant to the plaintiff on March 29, 1870. The defendant conveyed the land to John and Bridget Wills, by deed dated February 5, 1874, which contained these words: "And I do hereby for myself and my heirs, executors, and administrators covenant with the said grantees and their heirs and assigns that I am lawfully seised in fee simple of the granted premises; that they are free from all incumbrances, excepting a mortgage thereof for $3,000, which, with the interest thereon, the grantee assumes and agrees to pay." John and Bridget Wills conveyed the land to the plaintiff by a deed dated September 30, 1878, in which the consideration named was $3,500, and which contained these words: "The above conveyance is made subject to a mortgage of $3,000, which mortgage forms part of the above consideration." After the date of the writ in this action, the plaintiff conveyed the land to Dennis Winterson. The plaintiff also introduced testimony to prove that the market value of the land when conveyed to her by John and Bridget Wills was not over $2,500, and it was admitted that the plaintiff paid nothing to John and Bridget Wills for said conveyance. Upon these facts, the judge ruled that the plaintiff's claim against the defendant for the balance of the note over and above the market value of the land on September 30, 1878, was not extinguished. The jury returned a verdict for the plaintiff for $707.95; and at the request of the defendant, the judge reported the case for determination of this court. If the ruling was right, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside, and a new trial ordered. AMES, J. It appears from the report that the note in suit, which was for $3,000, was given by the defendant to the plaintiff, and was secured by a mortgage upon certain premises in Henchman Street in Boston. The note and the mortgage were of the same date, and there is no intimation of any other mortgage on the property. Some years afterwards, and before the note became due, the defendant conveyed the property to John and Bridget Wills, subject to the mortgage, it being recited in the deed that the grantees assumed and agreed to pay the mortgage. The effect of this transaction was to impose upon the grantees by their acceptance of such a deed, a duty to make the payment, upon which the law would imply a promise to do so. Pike v. Brown, 7 Cush. 133; Braman v. Dowse, 12 Cush. 227; Jewett v. Draper, 6 Allen, 434. Subsequently, and after the maturity of the note, these grantees, in consideration of $3,500, conveyed the mortgaged property to the plaintiff subject to the mortgage of $3,000, "which mortgage forms part of the above consideration." In other words, the plaintiff repurchased the property, or took it back, and part of the price of this repurchase was the debt or claim which she at the time held against the same property. The plaintiff accepted a deed, which on its face imported that the amount due to her upon this note, which John and Bridget Wills had become liable to pay, was reckoned and included in the consideration for that very deed. This mode of dealing operated as a payment of the mortgage debt, by a party legally bound to pay it, to a party entitled to receive it. Upon these facts, the same person who held the mortgage has become the holder of the equity of redemption, and there being no intervening incumbrance or outstanding interest in any other person, the mortgage is merged and the debt extinguished. 2 Wash. Real Prop (4th ed.), 193, and cases here cited. Verdict set aside, and new trial ordered.15 SPENCER v. HARFORD. SUPREME COURT OF NEW YORK, 1830. [Demurrer to pleas. The declaration is in debt on bond executed by defendant's testator to plaintiff.] By the Court, SAVAGE, C. J. The defendants plead four pleas, the object of which seems to be to set up the same defence, to wit, a satisfaction of the debt by an extinguishment of a mortgage which was given as collateral security at the same time the bond was executed. The third plea states that Fellows, by the sheriff's deed became seised of the equity of redemption; and that being requested by the 15 Compare, Johnson v. Walter, 60 Iowa 315; Moore v. Olive. 114 Iowa 650; Russell v. Pistor, 7 N. Y. 171; Kellogg v. Ames, 41 N. Y. 259. plaintiff either to pay the debt due him or to assign to him the equity of redemption in the mortgaged premises, Fellows conveyed for the consideration of one dollar, whereby the plaintiff became seised thereof, and the debt became paid and satisfied. The fourth plea is like the third, except it contains the additional averment that the plaintiff on the 17th November, 1825, sold the premises in fee for $650 to John Harford. We thus learn in these pleas, by way of inference, that Fellows purchased the equity of redemption in the mortgaged premises, and that the plaintiff became assignee of the same for a nominal consideration; and that he sold the premises in fee for $650. Had the third plea contained an averment that the value of the premises when the equity of redemption was conveyed to the plaintiff was equal to the amount due on the bond, or had the fourth plea contained an averment that the property was of the same value when the equity of redemption was conveyed to the plaintiff as when he sold to Harford, or was of value equal to the amount due on the bond, I should think the pleas good in substance, though in some respects informal. The only effect of the sheriff's sale was to substitute Fellows in the place of the mortgagor; when, therefore, the mortgagor released his equity of redemption for a nominal consideration to the mortgagee, the latter had the whole estate. Whether this effect is produced by a technical merger of the equitable into the legal estate, according to 2 Cowen, 246, or whether he holds the legal estate discharged of the condition, according to 2 Mason, 539, it is not important to inquire. The mortgagee becomes absolute owner, as he would by a foreclosure; and if the property when he thus receives it is equal in value to the debt for which it was mortgaged, it is payment in full; otherwise, not: but, in any event, is payment, pro tanto, acccording to its actual value. The pleas do not contain the necessary averments. It may be that the property was well worth $650 or more when sold to J. Harford, and not worth $100 when the title was vested in the plaintiff; the difference may have been caused by improvements or a rise in the value of the land. The value therefore should appear by proper averments. The pleas are all bad, and the plaintiff is entitled to judgment upon them, with leave to the defendants to amend, on payment of costs. 16 16Compare, Lilly v. Palmer, 51 Ill. 331; Murphy v. Elliott, 6 Blackf. (Ind.) 482; Northwestern Nat. Bank v. Sloan, 97 Iowa 183; National Investment Co. v. Nordin, 50 Minn. 336; Tucker v. Crowley, 127 Mass. 400 (cf. Pratt v. Buckley, 175 Mass. 115). See also, 15 Harv. L. Rev. 740. EDITORIAL NOTE. On discharge by alteration, see Kendall v. Kendall, 12 Allen (Mass.) 92; Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119. On discharge by foreclosure, on the effect of bankruptcy of the mortgagor, and on the effect of the statute of limitations, see post, Chap. VII. CHAPTER V. ASSIGNMENT OF MORTGAGES. YOUNG v. MILLER. SUPREME COURT OF MASSACHUSETTS, 1856. SHAW, C. J. The plaintiff is indorsee of one of two negotiable notes, one for $300, the other for $750, secured by a mortgage. The payee indorsed the $300 note to the plaintiff, but did not assign the mortgage or any part of it, but retained it and the other note secured by it, and afterwards transferred them, and the assignee discharged the mortgage. The plaintiff now brings this writ of entry to foreclose the mortgage, and claims that she had an interest in the mortgaged premises pro tanto, and that the mortgage could not be discharged in full, to her injury; and that, although the present defendant came in by an apparently good title, yet that the estate was subject to her lien. A proposition of this sort, not only that the holder by indorsement of a negotiable note, originally secured by mortgage, has some equitable interest in the mortgage under some circumstances, but that she may maintain a real action in her own name to recover the land, is so contrary to settled notions here, that it seems quite startling. It seems to be repugnant to what have long been regarded in this state as first principles. The true character of a mortgage is the pledge of real estate to secure the payment of money, or the performance of some other obligation. Its object, from its creation to its redemption or foreclosure, is that of a pledge for such debt or duty. It may, in many aspects, be called a real lien, a chattel interest, a chose in action, and quasi personal. But as it binds land, and may lay the foundation of a title to real estate, it assumes, in many respects, the character of a land title. It is so in its origin, by deed; in the mode of giving it notoriety, by registration; in its transfer, by deed of assignment; its discharge, by deed of release; and in the mortgagee's remedy, by writ of entry against the mortgagor or other person in possession under him. It may be admitted that there are equitable and incidental inter |