Hyland v. Habich , 150 Mass. 112 ( 1889 )

Knowlton, J.

The mortgage, which under the agreed statement of facts the plaintiffs seek to redeem, was given to secure the payment, first, of an existing indebtedness due from Matthew Hyland, and, secondly, of such indebtedness as might afterwards accrue from the sale or consignment of goods to said Hyland. The debt then existing was long ago paid, and' we need to consider only that part of the mortgage which relates to the indebtedness thereafter to be contracted.

The language of the condition in the mortgage impliedly gave the mortgagee a right to sell goods to said Hyland for an indefinite time upon the faith of this security. It was like an ordinary continuing guaranty of payment for goods to be sold, except that, instead of a personal undertaking to pay as a guarantor, it was a transfer of the estate as .security for the payment. The mortgagee had the same right to sell, trusting to the security, and there were the same limitations upon his right, as if the mortgagor had given merely a personal continuing guaranty. He had an implied authority from the owner of the mortgaged estate, which was subject to revocation at any time, and which would be revoked by the death of the owner. The principles laid down in Jordan v. Dobbins, 122 Mass. 168, are decisive of this case.

The defendants urge, that a conveyance of property as security implies that the authority to sell is to continue after the death of the owner, until the owners of the estate see fit to revoke the authority. But we see no good ground for this contention. If the security were by a mortgage of personal property, there would be no one after the death of the mortgagor who could revoke the authority until the appointment of an administrator. In the mean time, the property might be charged to its full value. And if the mortgage were of real estate, different heirs might disagree as to the action to be taken. We are of opinion that the right to sell upon the faith of the guaranty rests upon a continuing authority, and that, where a mortgage is given, instead of a personal promise, as security, the authority proceeds from the mortgagor, and is terminated by his death. Even in England, where it is held that such a guaranty is terminated, not by the death of the guarantor, but by notice of his death, the knowledge which the mortgagee in the present case had of the death of the mortgagor would be deemed constructive notice, sufficient to determine his right to sell on the faith of the security. Harriss v. Fawcett, L. R. 15 Eq. 311, and L. R. 8 Ch. 886. Coulthart v. Clementson, 5 Q. B. D. 42, 47. Lloyd's v. Harper, 16 Ch. D. 290, 314, 319.

Under the agreement of the parties, the plaintiffs are entitled to redeem upon the payment of $1,490, with interest from July 28,1888, and costs. Decree accordingly.