Crosby v. Chase , 17 Me. 369 ( 1840 )

The opinion of the Court was prepared by

Weston C. J.

Whatever the parties may have intended, it is manifest that the interest of the mortgagor, with which payment was made in point of form, had previously been taken from him by an attachment, which being consummated, relates back to a day anterior to the deed from the mortagagor to the demandant. If nothing but payment in fact, or the release of the mortgagee, will discharge a mortgage, which is a principle, not only equitable in itself, but sustained by the authorities, cited for the demandant, his lien upon the land created by the mortgage, remains in force. Indeed, the mortgage and the notes were retained by him, with the assent of the mortgagor, avowedly to meet the movements of the tenant. The certificate by the demandant, that payment had been made, may operate as a receipt, which is open to explanation. It is certainly not a paper of a higher character. The recital in the deed, that it was intended to cancel the mortgage and the notes, being accepted by the demandants, may conclude him from denying that fact. He does not now deny it; but avers truly, that what was intended has failed, by reason of the prior attachment of the tenant. The supposed payment has become unavailable. He has not been permitted to realize the consideration, which he was to accept, instead of payment of the notes in money.

The tenant throws himself upon his legal rights, and insists, that although the demandant may be disappointed in the result he expected, his mode of doing the business has given the tenant an advantage, which he may lawfully enforce. We think this position, taken to defeat the interest of the demandant, may be satisfactorily answered. The tenant, in virtue of his prior attachment, goes behind the deed, given by the mortgagor to the demandant, and avoids it. He is remitted to the state of the title, at the time of the attachment. He cannot bo permitted to defeat the deed for one purpose, and to set it up for another. If the demandant is embarrassed by any estoppel, supposed to result from his acceptanee of the deed, he is relieved, by the course taken by the tenant, who in the exercise of his legal rights, so far as the deed operates upon him, rides over and defeats it.

The levy, however, made by the tenant, transferred to him the right to redeem, existing in the mortgagor, at the time of the attachment. White v. Bond, 16 Mass. R. 400. And we are of opinion, that the award in favor of the demandant, is sustained by the law of the case.

Exceptions overruled.