Carlton v. Jackson

Endicott, J. At the time Jackson took his deed of the estate, it was subject to two mortgages. The second mortgage to Hastings he paid, and it was discharged. He also paid, after maturity, the amount due on the first mortgage to the savings bank, and took an assignment thereof from the bank. The legal title under the mortgage was thus in Jackson, as well as the equitable title under his deed. Under ordinary circumstances, a mortgage title thus obtained would be extinguished, if it appears that the title formerly held and the title acquired were coextensive and held in the same right, and no outstanding title in a third person intervened between the right held and the right acquired. Hunt v. Hunt, 14 Pick. 374, 384. Loud v. Lane, 8 Met. 517. Ho such outstanding title is disclosed in this case, nor is there anything to show that Jackson took the assignment as additional security, for the whole title was in him. But it is unnecessary to consider or decide the case merely on the portion of the record referred to, as we are of opinion that, upon all the facts disclosed in the report, the mortgage to the bank was extinguished by payment of the amount due thereon, although in form it appears to have been assigned to Jackson. Before the sale of the estate by auction, the plaintiff, who desired to purchase, and had no means of doing so except a mortgage due to her from Jackson, agreed with Jackson that he should purchase and convey it to her upon payment by her of all that he should expend on account of the estate, with interest. The payment of the mortgage due from him was a part of this agreement, as it appears that she afterwards discharged it, and he gave her a receipt for the amount due, in part payment of his advances. The estate was bid off at the auction by one James McCaffrey, a son in law of the plaintiff. A deed was made to McCaffrey, the consideration named being $4950, subject to the two mortgages, and it contained this clause: “ Both •aid mortgages the grantee is to assume and pay, the same being [596] a part of the above-named consideration.” McCaffrey made and executed a deed of release and quitclaim to Jackson, without covenants, and not mentioning any incumbrances. Both deeds were delivered at the same time, and Jackson paid the whole of the purchase money to the grantors, over and above the amounts due on the two mortgages. He thereupon permitted :he plaintiff to let the premises and collect the rents, a portion of which she paid over to him on account. It is evident, from this statement of the facts, that McCaffrey bid off the property for and in behalf of Jackson, and in pursuance of the agreement previously made with the plaintiff. He paid no money, had no possession, and did no act except to bid at the auction and to execute the deed to Jackson; and his acts were confirmed by Jackson when he paid the consideration money to the grantors, after deducting the amount of the mortgages. The two deeds are to be taken together as parts of one transaction. The stipulation in the first deed, that the grantee should pay the mortgages, was therefore binding upon Jackson, and he was not relieved from his liability to pay them because the deed of McCaffrey to him contained no such provision. If Jackson had received no deed from McCaffrey, he would have still been the equitable owner of the estate bought with his money and by his direction, the title to which stood in the name of his agent or trustee; and if, in that position of the title, the stipulation in the deed for the payment of the two mortgages had been enforced against McCaffrey, Jackson would have been obliged to protect him, for he was acting as his agent. Putnam v. Collamore, 120 Mass. 454. The form, therefore, of the deed to him cannot change the nature of the transaction. Jackson was bound to pay the mortgages, and the rule applies, that when the money is paid by one whose duty it is by contract, or otherwise, to pay the mortgage, it is a release, though in form it purports to be an assignment. Brown v. Lapham, 3 Cush. 551. Braman v. Dowse, 12 Curh. 227. The subsequent assignment of the mortgage by Jackson could give no title, to the Franklin Insurance Company as agains* the plaintiff. It is admitted that Jackson was acting as trustee in taking the conveyance under the agreement. The real question to be [597] decided is, vihat sum must the plaintiff pay to Jackson, or his assignees in bankruptcy, to entitle her to a conveyance of the premises. If the assignment of the mortgage is valid, then she should not be held in equity to pay the amount paid by Jackson to the savings bank; if invalid, then the sum so paid enters into the account. As the validity of the mortgage must be determined, the assignee of the mortgage was properly summoned in ; and so the rights of the assignees in bankruptcy and of the assignee of the mortgage are incidentally decided. But that does not call upon us to consider the question argued by counsel, whether Jackson and his assignees are estopped, as against the insurance company, to allege the extinguishment of the mortgage. We are to determine simply whether, as against the plaintiff, this mortgage upon her estate is outstanding. Being of opinion that it is not, the plaintiff is entitled to a conveyance of the estate, upon payment to the assignees in bankruptcy of the amount due, including the sum paid by Jackson to the savings bank. Decree accordingly.