Foley v. Rose

Morton, J. By the assignment to the plaintiff, the mortgagees, who at that time were the holders of both notes secured by the mortgage, “ assign, transfer and set over unto the said Jeremiah Foley and his heirs and assigns the said mortgage deed, the real estate thereby conveyed, so far as the same is security for said note of one thousand dollars thereby secured.” This transferred the legal title to the mortgage and the land co the plaintiff, leaving in the mortgagees only an equitable interest. The extent of this equitable interest must be determined by the construction of the assignment. Primá fade the assignment to the plaintiff to secure him for money advanced operates as security for the whole amount; and there is nothing in this instrument to show that it was intended to have a more restricted operation. The qualifying words, “ so far as the same is security for said note of one thousand dollars,” cannot have this effect. The same was security for the whole of the thousand dollar note. [559] Full effect is given to this provision by holding that it creates a trust in favor of the original mortgagees, which attaches to any.surplus that may remain after the note of one thousand dollars is satisfied. This case cannot be distinguished from Bryant v. Damon, 6 Gray, 564. There the assignment was precisely in its legal effect, and very nearly in its language, the same as in this case. The fact that there was in that case a covenant of warranty is not material. Such covenant applies to the premises granted and does not enlarge the grant. The fact that the condition of this mortgage, it containing a power of sale, is unlike that in Bryant v. Damon, does not affect the principle of that case. The condition affects the mode of foreclosure and the rights between the mortgagor and the mortgagees, but there is nothing in it having any tendency to show that the parties intended that the assignment to the plaintiff should not operate to secure him for the whole of the note held by him in case the property should be insufficient to pay both notes. It is hardly necessary to add that the defendant, so far as this question is concerned, stands in the same position as the original mortgagees. He could take by his subsequent assignment no greater rights than they had. We are therefore of opinion that the plaintiff is entitled to have his note paid in full out of the proceeds of the mortgaged property, and it is unnecessary to consider whether, if the defendant had a right of contribution, he could avail himself of such right in defence of this action. Judgment for the plaintiff affirmed.