Pratt v. Buckley

• Decision Date: 03 January 1900
• Citation: 175 Mass. 115,55 N.E. 889
• Parties: PRATT v. BUCKLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 115

55 N.E. 889

PRATT v. BUCKLEY.

Supreme Judicial Court of Massachusetts, Plymouth.

January 3, 1900

COUNSEL

Coughlan Bros., for appellant.

Chamberlain & Fletcher, for appellee.

OPINION

KNOWLTON J.

This is an action of forcible entry and detainer, brought under Pub St. c. 175, § 1. On March 3, 1893, Alice M. Pratt was the owner in fee of the property in dispute, and she mortgaged it to one Gould to secure the payment of $850. On March 7th of the same year she conveyed the premises to one Robinson by a deed which recited that the land was conveyed subject to a mortgage, and which excepted the mortgage from the covenant of warranty and the covenant against incumbrances. Afterwards the mortgagee notified her that the note was unpaid, and that, if it was not satisfactorily arranged at once, she should foreclose the mortgage and hold her responsible for any deficiency in the payment of the note. Accordingly to protect herself, she caused the amount of the note to be furnished said Robinson on the execution of an assignment of the mortgage to one Swain, which, with the note, was delivered to her agent; she intending to preserve her rights as assignee of the mortgage. Afterwards Swain assigned the mortgage to her, and she foreclosed it, and the complainant in this action purchased the property at the foreclosure sale. The defendant has a title from the holder of the equity of redemption, which is subject to this mortgage. The principal question in the case is whether the transfer of the note, and the assignment of the mortgage to the original mortgagor, after the premises had been sold subject to the mortgage, constituted in law a discharge of the mortgage, so that it could not be enforced against the property. We think it very clear that they did not. When the estate was sold subject to the mortgage, the mortgage was left as a primary charge upon the land, although the grantee did not make herself personally liable for it by assuming it. The grantor who was the maker of the mortgage note, was entitled to have the mortgaged property applied in payment of it. To protect her own interests, she might take an assignment of the mortgage and the debt, and enforce the mortgage by a foreclosure, as effectually as if she was not the maker of the note. Barker v. Parker, 4 Pick. 505; Gibson v. Crehore, 3 Pick. 475-482; Swett v. Sherman, 109 Mass. 231; Tucker v. Crowley, 127 Mass. 400; Kinnear v....