Ward v. Gunn , 94 Mass. 81 ( 1866 )

By the Court.

It appears that the note was indorsed as collateral security, and the mortgage transferred; but it is also shown that the debt for which 'the transfer of the collateral security was1 made was afterward paid. The note then became the property of the plaintiff. If the note had been returned to him, he would have had the right to strike off the indorsement, and sue upon the original contract. There is sufficient evidence that the note is lost, but the mortgage debt of which it was the evidence is due to the plaintiff, the mortgage has been reconveyed to him, and he may therefore maintain an action on the mortgage. The note is only incidentally in question, on the point of the amount due on the mortgage, for which conditional judgment is to be rendered. The note being lost, its contents may for that purpose be proved. Indeed, all that the plaintiff need to prove is that the note is unpaid, and that the debt is due to him. Judgment for the plaintiff.