Southwick v. Hapgood

Bigelow, J.

The plaintiff claimed title to the property in dispute in the present case, as assignee of a mortgage, bearing date May 21, 1850, made to secure the payment of a note for $625, payable on demand with interest, and a foreclosure of said mortgage, in pursuance of St. 1843, c. 72, § 1, by a written notice dated July 3, 1850, and duly recorded in the city clerk’s office of the city of Worcester. The legal rights of the parties under this mortgage are clear and indisputable. The note described in the mortgage, being payable on demand, was due presently, and the condition of the mortgage was broken immediately. No demand was necessary upon the promisor to constitute such breach. He was liable to a suit on the note, without demand, as soon as the note was made. Field v. Nickerson, 13 Mass. 131, 137; Alden v. Lincoln, 13 Met. 204. The mortgagee, therefore, or those claiming under him, had a right to give a notice, for the purpose of foreclosing the mortgage, according to the provision of the statute before cited, immediately after the mortgage was given. It follows, that the notice given for this purpose, on the 3d day of July, 1850, about seven weeks after the date of the mortgage, being in proper form, and having been duly recorded, was effectual to foreclose the mortgage in sixty days after that date. On the second day of September, the title to the property would, under the statute, become absolute in the mortgagee. It would seem quite plain then, if the mortgage and note were valid between the original parties, and were duly assigned to the plaintiff, and have never been paid or satisfied, that his title to the property under the mortgage had become absolute, and that he is well entitled to maintain this action. The defendants seek to avoid this conclusion by offering evidence to prove that the note and mortgage were given as security to the mortgagee, for his liability as indorser upon two notes of hand, payable in three months from May 22, 1850; and thereupon contend that there was no breach of the condition of the mortgage until said two notes had become due, to wit, on the 25th day of August following, and consequently, that the notice of foreclosure given by the plaintiff on the third day of July, 1850, being before any breach of the condition, was inoperative and void. In other words, the defendants attempt to engraft on the mortgage by parol a wholly different condition from that which is written in the mortgage itself; that is, evidence is offered by them for the purpose of showing that the condition of the mortgage was to secure the mortgagee for a liability maturing in three months, instead of a debt due and payable on demand. This is a manifest attempt to evade the well-settled rule of law, that written contracts cannot be varied or changed by parol. Parties having reduced their contracts to writing, must abide by them, and cannot be permitted to escape from them, by resorting to the uncertainty and vagueness of parol proof. Besides; it is obvious that the very purpose of making the note which was secured by the mortgage, payable on demand, instead of on three months, when the liability of the mortgagee as indorser on the two notes would mature, might have been to enable the mortgagee to take immediate steps for his security by an earlier foreclosure, if, before the notes which he had indorsed became due, he should deem it necessary so to do.

It is hardly necessary to add that this case would present itself in a different aspect, if the question to be tried related to the consideration of the note secured by the mortgage, or its validity in the hands of the present plaintiff. It is always competent for a party to show by parol the consideration of a note, for the purpose of proving its original invalidity, a subsequent failure of consideration, or payment and satisfaction of the note. All these questions will still be open to the defendants in another trial. But the evidence at the former trial was offered and admitted for a very different purpose; it was for the purpose of showing that there was no foreclosure of the mortgage, by proving that the condition mitten in the mortgage was not the real contract between the parties, but a wholly distinct and different one. For this purpose it "was clearly inadmissible, and the ruling of the court founded upon it was erroneous. This being the single point presented by the bill of exceptions, we have confined ourselves strictly to a decision upon it; leaving the other questions, which were discussed by counsel at the argument, to be decided, if it shall become necessary, after another trial.

Exceptions sustained.