Hawes v. Howland

C. Allen, J. The only question in this case is, whether the demandant is to be considered a “ mortgagee of record,” within the meaning of the Gen. Sts. c. 12, § 36, cl. 4, so that he was entitled to redeem the land in question within two years after he had actual notice of the tax sale to the tenant. We are of opinion, that one who is a mortgagee at the time of the sale, and who becomes a mortgagee of record before making tender for the purpose of redemption, is to be deemed such mortgagee of record. There are obvious reasons for such extension of time in favor of mortgagees over simple grantees. They hold their title merely for security, and would ordinarily have nothing to do with the taxes, at least prior to the enactment of the St. of 1881, c. 304, which provided for assessing the taxes upon mortgagees in certain cases. At the time of the tax sale, the demandant held an unrecorded assignment of a recorded mortgage. An assignee of a mortgage is a mortgagee within the meaning of the statute; Faxon v. Wallace, 98 Mass. 44; and he neéd not record his assignment until after bringing an action to foreclose. Wolcott v. Winchester, 15 Gray, 461. The original [270] mortgagee, without authority, after his assignment to the demandant, and prior to the tax sale, had assumed to discharge the mortgage upon the record; so that apparently the mortgage was discharged. But he had also brought a bill in equity seeking to have that discharge cancelled, on the ground that it was entered upon the record through mistake; and a decree of cancellation was finally passed. The effect of this decree, as between the parties, was to put them in the same position as if the discharge had never been made. The tax sale was made during the pendency of this suit; and the tenant, as purchaser, is affected in the same manner as if he had notice of the suit. 1 Story Eq. Jur. § 405. Haven v. Adams, 8 Allen, 363, 366. He bought the title of Foster, the mortgagor, to whom the taxes were assessed. It is the same as if he had bought directly from Foster, and he stands in a position of privity with her. She was a defendant in the bill for cancellation, and of course would be bound, and the purchaser at the tax sale is bound also. The St. of 1877, c. 229, which provided that a lis pendens concerning land should not affect persons other than the parties thereto, unless a memorandum thereof should be recorded in the registry of deeds, contained an express provision in § 3, that it should not apply to cases then pending; and that statute did not go into effect until twelve days after this suit in equity was tiegun. As to the tenant, therefore, the demandant stands as if the discharge upon the record had never been made. We need not consider whether the same result must not have been reached, independently of the doctrine of lis pendens. Judgment for the demandant.