Hampden Cotton Mills v. Payson

Soule, J. In an action to foreclose a mortgage, evidence is admissible to identify the note or other instrument secured by [90] the mortgage, though the description of it in the condition of the mortgage he in some particulars inaccurate. Hall v. Tufts, 18 Pick. 455. Pierce v. Parker, 4 Met. 80. Clark v. Houghton, 12 Gray, 38. The plaintiff does not seek to foreclose a mortgage, but to recover, under the provisions of the Gen. Sts. c. 140, § 30, the interest on thirty thousand dollars for eighteen months, which it alleges that it paid the defendants, in excess of the amount due on a mortgage on its land, in order to prevent the -foreclosure thereof by the defendants. It would be impossible to ascertain whether anything in excess of the amount due on a mortgage had been received upon it by the holder till the debt secured thereby, whether in the form of a note, bond or other obligation, had been identified, and the amount received by the holder compared with the amount due on the contract under which payment was to be made, and payment of which would be payment of all that was due on the mortgage. ‘The same reason which makes paroi evidence admissible to identify the secured note or other obligation in a suit for foreclosure, applies in a suit under the statute on which the plaintiff proceeds. It was competent, therefore, for the plaintiff to show that the notes which he produced were the only debt secured by the mortgage, notwithstanding the recital in the mortgage that they bore interest before maturity. The refusal to admit this evidence was erroneous, as well as the ruling that the mortgage debt was thirty thousand dollars and interest. If the notes which did not bear interest should be proved to be the only debt secured by the mortgage, the amount of the mortgage debt would be the amount due on them, notwithstanding the words in the condition of the' mortgage relating to the payment of interest. JExceptions sustained.