Callaghan v. O'Brien , 1884 Mass. LEXIS 113 ( 1884 )

Field, J.

At the time of the conveyance by John Toomey, Ellen O’Brien, and Thomas O’Brien to Timothy J. Mahoney of the land subject to the mortgage for $1033.33, this mortgage, “ with the possession taken to foreclose said mortgage,” was assigned by Thomas O’Brien to Bridget F. Mahoney, wife of Timothy J. Mahoney. Timothy J. Mahoney mortgaged back the land so conveyed to him, with full covenants of warranty and against incumbrances, to Thomas O’Brien for $1000, and his wife, not joining in the grant, joined with him in the in testimonium clause, as follows: “ And for the consideration aforesaid, I, Bridget Mahoney, wife of said Timothy J., do hereby release unto the grantee and his heirs and assigns all right of or to dower and homestead in the granted premises, and also, for further security for this mortgage, I release and convey my interest under the mortgage given by Daniel Toomey to said Thomas O’Brien,” which was the mortgage for $1033.33. If these words have any effect, they assigned the mortgage for $1033.33 to Thomas O’Brien, as security that the debt of $1000 secured by the mortgage from Timothy J. Mahoney to him should be paid, and, on payment of this debt, Bridget F. Mahoney would be entitled to a reassignment to her of the mortgage she had assigned. If Mahoney paid his mortgage, and it was discharged, he would then hold the equity of redemption, and his wife would hold the first mortgage. According to the legal effect of the- conveyances, if the purchase made in this case were carried out, the remainder of the purchase money (after satisfying the mortgage debt of $1000, with interest and the expenses of the sale) would belong to Timothy J. Mahoney, who would be liable on the covenants in his deed of mortgage, and the administrator of the estate of Bridget F. Mahoney would be entitled to an assignment of the mortgage for $1033.33. If there are any equities existing between the defendant Mahoney and his wife, which control this effect of the conveyances, they cannot be determined in this action. It is immaterial whether this last-named mortgage has been foreclosed by the entry for possession and the lapse of time, or not. If the fact that the equity was held by Mahoney and the mortgage by his wife prevented the foreclosure, still it did not extinguish the mortgage, and, on the face of the conveyance, it is an outstanding title.

In an action at law, the evidence recited of the manner in which the $2000 was paid, which was the consideration of the deed of John Toomey and others to Timothy J. Mahoney, as well as the evidence of the purpose for which the assignment of the mortgage for $1033.33 was made, is inadmissible to control the effect of the conveyances. This evidence does not tend to show that the first mortgage was in fact paid, and intended to be discharged. It follows, that the defendant could not give a good title to the land by a sale under the power contained in the mortgage to him, independently of the question whether Patrick Toomey had died intestate and unmarried.

By the advertisement and terms of sale, it was plainly the intention to sell the land, and not an equity of redemption. The purchaser must have so understood. The defendant is bound to give, but does not offer to give, a good title to the land, and the plaintiff is therefore entitled to recover the deposit of money she made. Swan v. Drury, 22 Pick. 485. Pickman v. Trinity Church, 123 Mass. 1, 6. Fryer v. Rockefeller, 63 N. Y. 268. Riggs v. Pursell, 66 N. Y. 193.

Judgment on the verdict.