Phelps v. Hendrick , 105 Mass. 106 ( 1870 )

Gray, J.

For the purposes of this decision, we may assume that there had been a breach of the condition of the mortgage, and that the notice of foreclosure was sufficient. But even in the case of a mortgage of real estate, a waiver or opening of a . oreclosure may be proved, not only by an express agreement in writing, but by any other unequivocal act of the mortgagee. Lawrence v. Fletcher, 8 Met. 153; S. C. 10 Met. 344. Joslin v. Wyman, 9 Gray, 63. In the case of a mortgage of personal property, a distinct oral agreement of the mortgagee must be allowed the same effect. The promise made by the mortgagee in this case to the plaintiff, in the presence and with the consent of the mortgagor, on the same day as the plaintiff’s purchase of the property from the latter, that he would assign or discharge the mortgage on the payment of the amount due thereon, was such an agreement. The plaintiff, having Immediately acted upon that agreement, and in compliance with its terms tendered to the defendant the amount due on the mortgage, which by virtue of the agreement was still unforeclosed, was entitled to the immediate possession of the property; and the subsequent sale thereof by the defendant was a conversion, for which this action will lie.

Judgment on the verdict for the plaintiff.