Douglas v. Stetson , 159 Mass. 428 ( 1893 )

Morton, J.

By the mortgage of March 8, 1889, the defendant acquired a defeasible title to the goods, subject to be defeated and revested in the mortgagors upon performance of the conditions of the mortgage. Landon v. Emmons, 97 Mass. 37. Weeks v. Baker, 152 Mass. 20, and cases cited. The payment by the mortgagors, without anything more, of the sum secured by the mortgage, operated of itself to discharge the mortgage; and the mortgagors were thereupon in possession of the goods as of their former title. Parks v. Hall, 2 Pick. 206, 210, 211. Claflin v. Godfrey, 21 Pick. 1. Merrill v. Chase, 3 Allen, 339. Joslyn v. Wyman, 5 Allen, 62. Franklin Bank v. Pratt, 31 Maine, 501. Mead v. York, 2 Seld. 449, 451. The defendant relies upon a reissue to him by the plaintiff of the note for a new loan, accompanied by a redelivery of the mortgage with the agreement that all the rights, privileges, and powers contained in the mortgage deed should be revived for the purpose of securing him for the loan thus made to the plaintiff. The question is whether this transaction vested the title to the goods in the defendant, it not being claimed that there ever was any delivery of them to him, or that he acquired any right to or authority over them except by this transaction. We do not think it did. The reissue of the note for a valuable consideration certainly did not convey to the defendant a title, defeasible or otherwise, to the goods. Merrill v. Chase, 3 Allen, 339. Did the redelivery of the mortgage deed, under the circumstances, and with the agreement set forth ? It is said in Rolle’s Abr. Faits, (N) 3, p. 26, that “ if a man seal and deliver a deed and then the seal is torn off from such deed, if he seals and delivers it again, though the same writing remains, that is still a good deed ”; and again, in Com. Dig. Faits, (B) 5, that, “ if a deed be can-celled, and afterwards executed and delivered de nova, it shall be good.” It is evident that the authors were speaking of the delivery of a deed as originally drawn for the purpose of carrying out the agreement as originally made. This is not such a case. It is an attempt to attach a new debt arising out of a new transaction to a mortgage which has been paid and is no longer a subsisting security, but which it is claimed the parties have revived by agreeing that it should be security for a new debt. Merrill v. Chase, and Joslyn v. Wyman, ubi supra. The purpose of a written mortgage is to state in all essential particulars the contract between the parties to it. We think the original mortgage departs too widely from the transaction in which it was sought afterwards to use it to be made available as security for the loan then made. The parties are not the same. The original mortgage was made and executed by the plaintiff and his wife. The covenants contained in it were their covenants. The note secured by it was their note. The conditions related to the amount then borrowed, which was different from that borrowed by the plaintiff afterwards, and provided that the sum then borrowed should be paid within three months from the date of the mortgage, and that upon its payment the note signed by the plaintiff and his wife should be void. In order that the original mortgage deed should correspond with the transaction in which the defendant now seeks to avail himself of it as security, it would be necessary to rewrite it in many essential particulars. We must take the instrument as it is, and we do not think the defendant can avail himself of it as security for the debt to which he seeks to apply it. Joslyn v. Wyman, Merrill v. Chase, and Mead v. York, ubi supra.

The defendant has proceeded on the footing of a mortgagee, and by virtue of the right and power supposed to be vested in him as mortgagee. The instrument being inoperative as a mortgage, the sale, which was against the plaintiff’s objection and without his consent, was wrongful. The case might stand differently if the plaintiff were seeking the aid of the court as a court of equity to compel the defendant to cancel and discharge or redeliver the mortgage. Upton v. National Bank of South Reading, 120 Mass. 153. Joslyn v. Wyman, 5 Allen, 62. This, however, is an action at law. A majority of the court are of opinion that the entries should be, verdict set aside, judgment for the plaintiff for $259.82, and interest from date of writ, and it is So ordered.