Rochford v. Atkins

Sheldon, J. We need not determine whether upon the plaintiff’s allegations he can maintain an action at law, or whether his only right to relief would be in equity. The fundamental fact which he asserts and upon which he bases his claim against Mrs. Atkins is that she was bound to pay off and discharge the outstanding mortgage which the plaintiff’s intestate had given to Gleason; that by agreement between himself, Gleason the prior mortgagee, and this defendant acting through her husband the defendant Edward Atkins, the mortgage to her was really given, to the amount due upon the Gleason mortgage, in payment of that mortgage and in substitution for it. The plaintiff put in some evidence in support of that contention. But in a previous suit brought by James A. Rochford to establish a mechanic’s lien upon the mortgaged premises, to which Mrs. Atkins and Thomas J. Rochford the plaintiff’s intestate were parties, the contrary of that contention was expressly found, and the claim now made passed in rem judicatam. See Rochford v. Rochford, 188 Mass. 108. The conclusion thus reached is binding upon all parties to that litigation. It follows, as Mrs. Atkins’ mortgage was not given in payment of and substitution for the Gleason mortgage, that she had a right upon paying off that mortgage to take an assignment of it and to hold it as additional security against any intervening liens or attachments. Therefore the foreclosure of it for breach of its conditions was not unlawful, and the foundation of the plaintiff’s claim against her fails. [370] Taking the most favorable view for the plaintiff of the evidence to support his action against Edward Atkins, it does not appear that he has done anything except as agent of his wife and in her right. As nothing has been done beyond what she had a right to do, the action against him can no more be maintained than that against her. In each of these cases the entry must be Judgment for the defendant.