Grover v. Flye

Bigelow, C. J. It is admitted that the sums due on the mortgage to the Loan Fund Association were paid before the sale of the right in equity to redeem was made by the officer; and that these payments were made at or before the times when the several instalments became due according to the stipulation set forth in the condition of the mortgage and the bond which accompanied it and formed part of the transaction. By such payment, on familiar principles, the condition was saved and the mortgagor, the tenant, was in of his old estate. No conveyance or discharge of the mortgage was necessary to revest the estate in the mortgagor, or to defeat the title of the mortgagee. Merrill v. Chase, 3 Allen, 339, and cases cited. Joslyn v. Wyman, ante, 62. The argument, therefore, of the demand-ants, founded on the necessity of recording a release or discharge of a mortgage in order to defeat a title acquired by a judgment 545 creditor by a sale on execution of a right in equity made after such release or discharge but without actual notice thereof, falls to the ground. The act of payment in the country ante vet apud diem saves the forfeiture of an estate held by a conveyance defeasible on a condition subsequent. No record of such an act is necessary to make the estate a fee simple estate in the grantor or mortgagor, as against all persons claiming by a subsequently acquired title. The release of the Loan Fund Association to the mortgagor was a useless and superfluous act, which added nothing to the strength of the title which he had acquired by a performance of the condition of the mortgage before a breach. It follows, that the title of the demandants under the sale of the right in equity to redeem the estate is invalid. The premises being unincumbered and held by the judgment debtor as an estate in fee at the time of the service of the execution, could be legally levied on only by an appraisement, and set off in the mode prescribed by law. Forster v. Mellen, 10 Mass. 421. Freeman v. M'Gaw, 15 Pick. 82. Perry v. Hayward, 12 Cush. 344. Exceptions sustained.