Chase v. Gates

Howard, J. — Sanborn having mortgaged the premises to Moor, in 1835, subsequently conveyed them, by deed of warranty, to Herring, who conveyed to H. Bradbury, and took from him a mortgage to secure the consideration for the conveyance. H. Bradbury conveyed with covenants of warranty to J. Bradbury in 1837. In order to foreclose his mortgage, under the provisions of the statute of 1821, chap. 39, sect. 1, Moor, in 1838, procured J. Bradbury’s consent in writing to an entry for that purpose. The statute provided that the .entry to foreclose should be “ by process of law, or by the consent in writing of the mortgager or those claiming under him, or by the mortgagee’s taking peaceable and open possession •of the premises mortgaged, in presence of two witnesses.” .Moor quitclaimed to the plaintiff in 1843. [365] It is contended that such entry of Moor was effectual to foreclose the mortgage at the expiration of three years from its date. But, at that time, Herring held the entire interest of the mortgager to Moor, subject only to the right of J. Bradbury to redeem the equity from him, and his consent in writing to the entry was not obtained. The consent in writing to an entry for foreclosure was not sufficient, under the statute of 1821, unless given by the mortgager, or those claiming the entire equity under him. The entry of Moor, not having been in conformity to any of the provisions of the statute then in force, did not effect a foreclosure as against Herring. By his conveyance in 1843, to the plaintiff, he transferred his interest as mortgagee, only, in a mortgage not foreclosed or extinguished. The note in suit was given as part of the consideration for the conveyance of the premises, in 1846, by the plaintiff to the defendant, with general covenants of warranty. In order to secure the defendant against the asserted claims of Herring, to an equity of redemption in the estate, the note was made payable to White & Co. or order, and to be held by them for the benefit of the plaintiff; but “not to be negotiated, or given up to him until the claim or right of said Herring shall be settled or adjusted; and in case said Gates shall be held to pay any thing to said Herring, to remove, or get a release of said claim, or shall be put to any trouble or cost thereon, the amount thereof shall be allowed upon said note.” An agreement in writing was given by the plaintiff to the defendant, containing these stipulations, and bearing even date with the deed and note. It appears, that the plaintiff did not settle or adjust the claim of Herring, and that the defendant, on January 30, 1850, about six months after the note, in terms, became payable, and by advice of counsel, paid $250, to settle and extinguish Herring’s claim upon the estate, and took from him a deed of release and quitclaim. As this claim upon the estate appears to have been legal and just, and the amount paid to remove it is not pretended to be excessive or unreasonable, and as the [366] payment was made according to the agreement of the parties, that sum should be “allowed upon the note.” The claim of Herring constituted the only incumbrance contemplated by the parties, and when that was removed, the legal and equitable interest in the note was in the plaintiff. It was in the hands of White & Co., indorsed for his benefit. The terms and conditions of their trust having been accomplished, they could not legally control or retain the note. The plaintiff could institute a suit upon it, in his own name, and upon the statement of facts, is entitled to judgment for the remainder after deducting the payment before mentioned.