Butler v. Taylor , 71 Mass. 455 ( 1855 )

Shaw, C. J.

The plaintiff stands in the position of the first mortgagees, the Essex Company. They owned the estate in fee. They conveyed it in fee to the two defendants, and at the same time, as part of the same transaction, took back the same title in mortgage, subject to no qualification. The plaintiff therefore is entitled to be paid, or proceed to foreclosure, without being obliged to investigate titles arising after his own. No principle of law or equity obliges him to give one after claimant a preference over another. He will do his whole duty, prima facie, by-releasing his interest on receiving payment, leaving after claimants to the preferences which their respective mortgages give them when the prior incumbrance is discharged. The plaintiff’s title is predominant, to which all after titles are subordinate. All who take titles subject to such prior mortgage, should arrange their conveyances in such mode as to provide for the discharge of the mortgage in such way as to secure them in their respective rights.

Motion of the defendants overruled; and judgment in the usual form for the plaintiff.