Eaton v. Tuson

Field, J. The question in this case is whether the plaintiff’s title was subject to the unrecorded mortgage of the defendant. The first two mortgages given to the plaintiff, we think, clearly purport to convey to the plaintiff the property, subject to the mortgage to the defendant; or, in other words, only to convey the mortgagor’s right of redeeming the property from the mortgage to the defendant. The third mortgage to the plaintiff is of ‘‘ all the personal property mortgaged to grantee by mortgage dated October 13, 1883, and recorded with Worcester city mortgages of personal property, to which reference is had for a description.” The mortgage dated October 13, 1883, is made expressly subject to the incumbrances mentioned in the prior mortgage of October 12, 1883, and the mortgage to the defendant is an incumbrance expressly mentioned in this mortgage of October 12,1883. The mortgage of October 17,1883, therefore, only conveyed to the plaintiff the mortgagor’s right of redemption from the mortgage to the defendant. The case is governed by Tuite v. Stevens, 98 Mass. 305, Howard v. Chase, 104 Mass. 249, and Pecker v. Silsby, 123 Mass. 108. Exceptions overruled.