Norton v. Palmer

• Decision Date: 21 October 1886
• Citation: 8 N.E. 346,142 Mass. 433
• Parties: NORTON v. PALMER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 433

8 N.E. 346

NORTON v. PALMER.

Supreme Judicial Court of Massachusetts, Berkshire.

October 21, 1886

COUNSEL

J. Branning, for tenant.

Lyman J. Strickland had no assignable interest in said mortgage and could convey no interest or title whereby demandant can maintain this action against defendant. Given v Marr, 27 Me. 212; Bell v. Morse, 6 N.H. 210; Merrill v. Chase, 3 Allen, 339; Young v. Miller 6 Gray, 152-156; Tarbell v. Parker, 101 Mass. 165. The notes of demandant, at the time of the alleged assignment of said mortgage to him, were barred by the statute of limitations, as was also the mortgage. Lewis v. Marshall, 1 McLean, 16; Bank of U.S. v. Daniel, 12 Pet. 32; Piatt v. Vattier, 9 Pet. 405; Hawley v. Cramer, 4 Cow. 717; Perry v. Craig, 3 Mo. 516; Pratt v. Northam, 5 Mason, 95; Humbert v. Trinity Church, 7 Paige, 195.

Dewey & Wright, for demandant.

A mortgage, valid at the outset, cannot, unless barred by the statute of limitations, be defeated or discharged except by the performance of the condition. Davis v. Maynard, 9 Mass. 242; Watkins v. Hill, 8 Pick. 522; Pomroy v. Rice, 16 Pick. 22; Thayer v. Mann, 19 Pick. 535; Smith v. Johns, 3 Gray, 517. See Crane v. March, 4 Pick. 131; Bryant v. Damon, 6 Gray, 564; Rice v. Dewey, 13 Gray, 47; Aldrich v. Blake, 134 Mass. 582; Johnson v. Candage, 31 Me. 28; Haynes v. Wellington, 25 Me. 458. The plaintiff's right to foreclose the mortgage is not barred by lapse of time. Whitney v. Bigelow, 4 Pick. 110; Cox v. Hoxie, 115 Mass. 120; Ritter v. Phillips, 53 N.Y. 586; 2 Jones, Mortg. (2d Ed.) § 1201. See Pub.St. c. 120,§ 4; Earle v. Fiske, 103 Mass. 491; Youngblood v. Vastine, 2 Amer.Rep. 509. Apart from all other questions, the defendant could not set up the statute of limitations against said mortgage until the lapse of 20 years from April 1, 1865. Heyer v. Pruyn, 7 Paige, 465; Hughes v. Edwards, 9 Wheat. 490; 2 Jones, Mortg. § 1202.

OPINION

HOLMES, J.

This is a writ of entry to foreclose a mortgage given in October, 1837, by Henry Palmer to Willis Strickland to secure a series of promissory notes payable at different dates. The demandant holds two of these notes by gift from Allan Hawley, to whom they were indorsed by the mortgagee, with an agreement to hold the mortgage in trust to secure them. The mortgagee afterwards transferred the other notes and the mortgage to Lyman Strickland, who had notice of this agreement. Lyman Strickland received payment of his notes, surrendered them to the mortgagor, and later assigned the mortgage to the demandant.

The main argument for the tenant, as we understand it, is that a transfer of one of several mortgage notes carries no equitable interest in the mortgage if nothing is said, and that an oral understanding that it shall remain secured is an attempt to create a trust without writing, which does not help the case; that, the two notes held by the demandant having thus been detached from the mortgage, it was satisfied when the other notes were paid, and the demandant got no new rights under it by the subsequent assignment to him. The fallacy is the first premise, which presses a mere suggestion made by Chief Justice SHAW, but without expressing an opinion, in Young v. Miller, 6 Gray, 152, 154, 156, as to whether a trust would be implied if nothing was said, into authority for a much broader proposition. When the understanding is that the mortgage shall continue to secure the note according to its terms, there is no more difficulty in making the mortgagee a trustee for the holder of one note than there is in making him one for the holder of all, when all are transferred; and Young v. Miller intimates as much. Moreover, Chief Justice SHAW'S doubt does not seem to have been felt by those courts before whom the question has come for decision. Moore v. Ware, 38 Me. 496; Keyes v. Wood, 21 Vt. 331; Belding v. Manly, Id. 550; Donley v. Hays, 17 Serg. & R. 400; Pattison v. Hull, 9 Cow. 747; Cooper v. Ulmann, Walk. 251; Walker v. Schreiber, 47 Iowa, 529. See Bassett v. Daniels, 136 Mass. 547, 548.

The mortgage was not extinguished by payment of Lyman Strickland's notes, but remained outstanding in trust seemingly without question on the part of the mortgagor, and was afterwards lawfully transferred to the demandant, who was equitably entitled to it.

Interest has been paid on the two notes, and the mortgage has been recognized by the mortgagor within 20 years as outstanding. The deed from the mortgagor to the tenant also refers to a mortgage as outstanding, which the court may well have found to be the one in suit. If the notes were barred by the statute of limitations, the mortgage was not, and a writ of entry could be brought upon it. Thayer v. Mann, 19 Pick. 535; Heburn v. Warner, 112 Mass. 271-274; Hancock v. Franklin Ins. Co., 114 Mass. 155, 156; Hannan v. Hannan, 123 Mass. 441, 442.

We do not discover what the tenant has to...