Dickason v. Williams

Ames, J. It appears from the report that the note in suit, which was for $3000, 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 [184] 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 that payment, upon which the law would imply a promise to do so. Pike v. Brown, 7 Cush. 133. Braman v. Bowse, 12 Cush. 227. Jewett v. Draper, 6 Allen, 434. Subsequently, and after the maturity of the note, these grantees, in consideration of $3500, conveyed the mortgaged property to the plaintiff subject to the mortgage of $3000, “ 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 Washb. Real Prop. (4th ed.) 193, and cases there cited. Verdict set aside, and new trial ordered.