Taft v. Stoddard , 142 Mass. 545 ( 1886 )

Morton, C. J.

This is a bill in equity, brought by the administrator of the estate of a second mortgagee to redeem land from a first mortgage. The first mortgage was originally given by Ezekiel B. Stoddard to one Dickinson, and was afterwards assigned to the defendant. It was, in form, a mortgage to secure the payment of a note for $10,000. It was proved by oral testimony, at the hearing, that it was, in fact, given for the benefit of the defendant, to secure him for advances which he had made, and which he might thereafter make, for the benefit of the mortgagor in the settlement of his affairs, and for the services rendered by the defendant in such settlement. Dickinson held the mortgage, until he assigned it, in trust for the defendant. Breen v. Seward, 11 Gray, 118. We cannot see that the rights and equities of the parties in this suit are different from what they would have been if the mortgage had been" originally made directly to the defendant.

It has been repeatedly held by this court, that, on a bill to redeem by a mortgagor, it is competent for the mortgagee to show by oral testimony what was the real debt or obligation which the mortgage was given to secure, and even to show that, after it was given, the parties agreed that it should be held as security for a new and different debt. In such cases, a court of equity will not aid a mortgagor, or permit him to redeem, until he does equity, and pays the debt intended to be secured by the mortgage, according to the agreement and real equities between the parties. Joslyn v. Wyman, 5 Allen, 62. Stone v. Lane, 10 Allen, 74. Upton v. South Reading Bank, 120 Mass. 153. The same principle is applied when a bill to redeem is brought by one who has taken a conveyance from the mortgagor with a knowledge of the facts. Joslyn v. Wyman, ubi supra. Stone v. Lane, ubi supra.

In the case at bar, the plaintiff has no higher equity than that of the mortgagor. The second mortgage is expressly made subject to the first, and, when Whitman Holbrook, the plaintiff’s intestate, took his mortgage, he was informed of the origin, character, and purposes of the first mortgage. He took it with a knowledge of all the facts. His administrator stands in no better position than the mortgagor ; and, in this suit, the defendant is entitled to hold his mortgage as security for the payment of his services and advances, as found by the presiding justice of the Superior Court.

As the defendant never made any demand for the sums claimed for his services, we see no error in the ruling of the Superior Court, that he is not entitled to interest thereon.

The Superior Court has found that the defendant has fully executed the trust assumed by him under the indenture of 1867, and that he is not now under any liability to any of the creditors of E. B. Stoddard and Company under said indenture. It follows that the defendant cannot hold his mortgage as security for an alleged liability which does not exist. The rulings of the Superior Court were correct.

Decree affirmed.