Burns v. Hunnewell

Crosby, J. This is an action upon a promissory note wherein three of the defendants are makers and the fourth defendant is an indorser. From the agreed facts it appears that the note was given in consideration of a loan from the plaintiff to the defendants of $300, and that “at the time the note in question was delivered to the plaintiff, two of the defendants executed and delivered to the plaintiff a quitclaim deed of certain land with the buildings thereon situated in Malden in said county.” It was further agreed that upon receiving this deed the plaintiff executed a written agreement, by the terms of which he promised to reconvey the premises to the grantors provided that the note was paid at maturity,^and if not so paid, “the title to said property to vest in me [the plaintiff] absolutely, free from any legal or equitable claims of said Hunnewells.” It is clear that the deed and agreement taken together constitute in equity a mortgage to secure the payment of the loan. The rule long has been established in this Commonwealth that if [108] a conveyance absolute in form is given as security for a debt, it will be construed to be a mortgage no matter how strongly the language used may indicate that the parties intended to prevent any right of redemption or reconveyance. Murphy v. Calley, 1 Allen, 107. Campbell v. Dearborn, 109 Mass. 130. Moors v. Albro, 129 Mass. 9. “Though it be ever so strongly expressed that the estate shall be absolute if the money is not paid at the day fixed, such stipulation would be void. It does not depend upon the intent of the parties; because it is an intent contrary to the rules of law, which the law will not carry into effect.” Bayley v. Bailey, 5 Gray, 505, 510. The plaintiff, holding the defendants’ overdue note, may enforce his claim by a personal action, to the same extent and by the same remedy that an action might have been brought upon the note had it been secured by a mortgage upon the real estate with a defeasance clause in the usual form. The receipt of the deed by" the plaintiff, followed by the failure of the defendants to pay the note when due, does not amount to a satisfaction of the debt. It follows that in accordance with the stipulation contained in the agreed facts, judgment is to be entered for the plaintiff for the amount of the note and interest. So ordered.