Martin v. Martin

• Decision Date: 06 April 1888
• Citation: 16 N.E. 413,146 Mass. 517
• Parties: MARTIN et al. v. MARTIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 517

16 N.E. 413

MARTIN et al. v. MARTIN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1888

COUNSEL

Robert

W. Light, for plaintiff.

If the defendant in the case at bar had wanted to save her right she could have had the mortgage in question assigned to a third person in trust for her, and then there would have been no chance of a merger, and interest would have been suspended. By the statutes of 1871 a married woman may make a contract in the same manner as if she were sole, "except that she shall not make contracts with her husband." Pub.St. c. 147, § 2. The defendant in this case, by having the mortgage assigned to her, practically made a contract with her husband, who stood in the position of mortgagor, and who was bound to keep down the interest and incumbrances against the estate; and in this estate he had the full benefit as a life-tenant. Thus, by making herself the mortgagee, she was the only person to whom her husband was called upon to pay interest. He was her debtor. Jackson v. Parks, 10 Cush. 553; Gay v. Kingsley, 11 Allen, 345. A wife's note given to a third person before marriage, then indorsed to husband after marriage by payee makes the note a nullity, and is not good against the wife though indorsed back to the original payee by the husband according to agreement made at the time of first indorsement. Chapman v. Kellogg, 102 Mass. 246. Nor could it be revived at husband's death. Abbott v. Winchester, 105 Mass. 115. A note indorsed by the wife to husband's order is invalid, even though indorsed to a third party. Roby v. Phelan, 118 Mass. 541. Before the statute of 1871 was passed, there would be no question but such an act on the part of the wife would cause a merger. She would be his agent, spending his money in purchasing the mortgage and note. The act of 1871 did not put her in any better position. When the wife becomes the assignee of a mortgage given by her husband, she is debarred from claiming any interest that accrued during coverture, and is estopped to act in any way against him. She could not foreclose under said mortgage for any kind of a breach he might have suffered. She cannot claim interest against the remainder-men, as she received the benefit of the estate during coverture. Tucker v. Fenno, 110 Mass. 311. If she could recover interest against the remainder-men, the remainder-men could, in turn, sue her husband's estate, and thus she would virtually attempt suit against her late husband for interest on money she loaned him. She cannot prove a claim against her deceased husband's estate for money loaned during coverture. 4 Kent, Comm. (12th Ed.) 77. The statutes do not release the husband from the debts of the wife, although they allow her to make contracts, sue, and be sued. He is in the same position as before the statute. Equity would not relieve in such a case, as it would be a stale claim or demand; laches and neglect always being discountenanced. Story, Eq.Jur. (Redf.Ed.) § 1520, note 1, p. 734; Chapman v. Kellogg, 102 Mass. 246. In an estate for life, if the estate be charged with an incumbrance, the tenant for life is bound in equity to keep down the interest out of the rents and profits. This applies to a tenant by the curtesy, as well as any other life-tenancy. 4 Kent, Comm. 74; Plympton v. Dispensary, 106 Mass. 544, 547. If the mortgagee neglects for years to collect interest from the tenant for life, he may, notwithstanding, collect the arrears from the remainder-men. The duty to keep down incumbrances is only between the tenant and remainder-men. (Roe v. Payson, 2 Madd. (Amer.Ed.) 581; In re Morley, L.R. 8 Eq. 594;) though the assets of the tenant for life would equitably be answerable to the remainder-men for their indemnity, in the event the remainder-men had to pay back interest. The mortgage is not discharged or destroyed, as it would be at common law, by such a union or relation. Bemis v. Call, 10 Allen, 512; Tucker v. Fenno, 110 Mass. 311; Cormerais v. Wesselhoeft, 114 Mass. 550. But the wife's rights as mortgagee, and her remedies, are greatly modified by the fact of her husband's holding the title of mortgagor. The assignment of the mortgage to the wife is not void, except in so much as it creates an obligation on the part of the husband. The wife still holds her security against the mortgaged estate, but the right to interest is suspended during coverture. Tucker v. Fenno, 110 Mass. 311.

J.M.B. Churchill, for defendant.

The sole question for the court is whether the heirs of a mortgagor, deceased, can redeem without paying interest on the mortgage debt to a bona fide assignee for value, because that assignee has married the husband of the mortgagee. In short, is not stipulated interest an incident of the principal admitted to be due? In Massachusetts the English characteristics of a mortgage are retained. It is a conveyance on condition. The lien or obligation is between the property and the mortgagee, and cannot, therefore, be affected by marriage of an assignee of the mortgage with the widower of the mortgagor. That marriage of a mortgagor and mortgagee does not extinguish the mortgage, see Power v. Lester, 23 N.Y. 527. Assignment of mortgage to wife of mortgagor does not operate as a discharge, (Bemis v. Call, 10 Allen, 512; Association v. Boston, 114 Mass. 133; Tucker v. Fenno, 110 Mass. 311; Bean v. Boothby, 57 Me. 295;) nor assignment to husband of mortgagor, even though the husband has himself joined in the mortgage, (Cormerais v. Wesselhoeft, 114 Mass. 550; Butler v. Ives, 139 Mass. 202.) It may be considered as settled that, in Massachusetts, even the note in this case was not extinguished without regard to the subsistence of the mortgage; for the language of the court in Butler v. Ives, supra, amounts to nothing less than overruling anything in the cases of Chapman v. Kellogg, 102 Mass. 246, and Abbott v. Winchester, 105 Mass. 115, inconsistent with the view that where a valid note has been given, secured by a mortgage, the note and mortgage remain good, notwithstanding assignment thereof to the husband or wife of the maker. Smith v. Johns, 3 Gray, 517. Even the personal liability of the mortgagor may be released without extinguishing the mortgage, (Hayden v. Smith, 12 Metc. 511;) and the remedy under the mortgage remains, though the note be outlawed, (Thayer v. Mann, 19 Pick. 535; Ayres v. Waite, 10 Cush. 72, 76.) Payment of interest is as much a condition of the mortgage as payment of the principal, and was promised and assumed by one and the same obligation; but interest follows the principal as a legal incident of the debt, even though not expressly stipulated for in the mortgage or note. Brannon v. Hursell, 112 Mass. 63; Spencer v. Pierce, 5 R.I. 63; Jones, Mortg. §§ 73, 74. Accrued interest is itself a debt, and may be tacked to the mortgage. Quimby v. Cook, 10 Allen, 32; Wilcox v. Howland, 23 Pick. 167. The case of Richards v. Richards, 2 Barn. & Adol. 447, is especially in point. Even occupation under the mortgage does not affect the right to principal and interest; and her occupation as his wife, under his tenancy by the curtesy, was not such possession as to entitle the plaintiff to any reduction for rents and profits. Sanford v. Pierce, 126 Mass. 146.

OPINION

KNOWLTON J.

The defendant is the assignee of a mortgage of real estate given June 1, 1873, to secure payment of $1,100, and interest thereon at 7 per cent. per annum. A balance of $400 of the principal remains due, and no interest has been paid since April 15, 1881. The plaintiffs bring their bill to redeem and contend that the defendant is not...