default was not valid, (5) and that the appearance of the defendants
in the last suit before the commissioners, and their abortive attempt
to have the default tak^n off, did not cure the radical defect of want of
notice to the original respondents. Prentiss v. Parks, 65 ā 559.
1. A certificate by an officer to the registry of deeds of an attach-
ment of real estate of Henry M. Hawkins will not create a lien upon
the estate of Henry F. Hawkins, who was the man intended, jket-
ton V. Simmons, 65 ā 583.
2. In proceedings to foreclose a chattel mortgage the fact that the
name of the mortgagee is sometimes stated in the papers to be
"William H. Mansell, and sometimes William Mansell will not vitiate
the foreclosure, it appearing that no misapprehension was caused on
that account. Ryder v. Mansell, 66 ā 167.
See Appeal, 2, p. 24.
Election, p. 194.
ExEcimoir, 25, p. 253.
Indictment, 68, p. 294.
Pleading, or Colton v. Stan-wood, 67 ā 25.
Tax, or Farnsworth Co. v. Rand, 65 ā 19.
1 . Money paid under a mistake of fact may be recovered back, as
where a certain sum was added to defendant's bill when it should
have been subtracted from it. Millett v. Holt, 60 ā 169.
2. An indorser of a note, who pays its amount to an indorsee, in
ignorance of the fact that the note had been materially altered by the
maker in the hands of the indorsee, can recover it back. Sheridan v.
Carpenter, 61 ā 83.
3. Where one sues to recover back the amount of a note paid by
mistake of fact, it is enough to offer to return the note at the trial. Ih.
MONEY ā MORTGAGE. 369
4. If a mistake is made in drafting a written contract, and the par-
ties subsequently settle upon the basis of the contract as it should
have been written, and a promise is made to pay or allow the balance
thus found due, this verbal correction of the mistake may be shown,
and the promise enforced. Wiggin v. Goodwin, 63 ā 389.
See Bounty, 9, p. 78.
Equity, p. 201.
1. If a party receives money, or bank bills, in the usual course of
business, for a valuable consideration, and in ignorance of the circum-
stances by which the payer came by it, he will be entitled to hold it
against a former owner from whom it was fraudulently or feloneously
taken. Orneville v. Pearson, 61 ā 552.
2. There are two descriptions of lawful money under the acts of
Congress ā coin and legal tenders. Stringer v. Coombs, 62 ā 160.
3. An officer, who has collected money on an execution, can not
apply it in satisfaction of another execution against the person for
whom it was collected, both executions being in his hands for collec-
tion at the same time. Hardy v. Tilton, 68 ā 195.
See Payment, 12.
EIGHTS AND INTERESTS OP THE PARTIES.
TRANSFER OF RIGHTS IN MORTGAGED ESTATES.
(a) The bight to rbdbem.
(b) Adjustment of accounts.
(c) Bills to bbdeem.
ACTIONS AT LAW.
1. A deed absolute on its face, with a separate instrument of defeas-
ance, must be executed at the same time or as a part of the same tran-
saction, in order to constitute a mortgage, and this must affirmatively
appear. Cotton v. McKee, 68 ā 488.
2. If the grantee of land conveyed by an absolute deed gives back
a bond of defeasance, which is not recorded, as to the public without
notice, such grantee is the owner of the fee. Knight v. Dyer, 57 ā 174.
3. A man may make a valid mortgage for the payment of money
without particularly describing the writing which may be evidence
of the debt designed to be secured, or without even giving any
independent written evidence of' the debt. Varney v. Hawes, 68
4. Plaintiff was selling agent of a wholesale firm of whom defendant
desired to purchase goods on credit. To obtain the credit it was
arranged between plaintiff and defendant that plaintiff should become
surety on defendant's note to the firm on four months, for the price of
the goods, and defendant should give plaintiff a mortgage on the
property demanded in this suit, conditioned for the payment to the
plaintiff in four months of a sum of money equal to the amount of the
note. This was all done, and defendant had the goods and made par-
tial payments to the plaintiff as agent, which were accounted for on
the note. He resisted the suit on the mortgage, claiming that the
conditional clause in the mortgage did not sufficiently describe the
plaintiff's liability on the note and was contradictory to it, and because
plaintiff had not then paid the note to his principals. Held, that
neither of these defenses could be sustained. lb.
II. EIGHTS AND INTERESTS OF THE PARTIES.
5. To postpone a subsequent recorded mortgage to an earlier unre-
corded one it is necessary that actual notice of the existence of the
earlier mortgage to the subsequent mortgagee be shown by a prepon-
derance of testimony. Marshall v. Dunham, 66 ā 539.
6. FixTUEEs, annexed to the reality, by a mortgager, after the
execution of the mortgage pass under it. Pope v. Jackson, 65 ā 162.
7. The holder of a junior mortgage may disregard his own mort-
gage and sell on execution, issued upon a judgment recovered on his
mortgage debt, the debtor's equity growing out of a prior mortgage.
Forsyth v. Bowell, 59 ā 131.
8. If the indorser of a note, secured by a mortgage containing a
power of sale can disaffirm an auction sale of the premises to the
assignee of the mortgage, he must do so within a reasonable time.
Patten v. Pearson, 60 ā 220.
9. Where a sale was made in August, 1859, and no disaffirmance
attempted until Dec, 1861, when the indorser was sued on the note,
and the property had passed to third persons, it was held too late. Ih.
10. Insurance. When the mortgaged property is insured by the
mortgager for his own benefit, and a loss happens, the mortgagee has
no lien upon the amount due from the insurers until after he has
given the notice required by li. S., 1871, c. 49. Burns v. Collins, 64
11. If the insurance company, in good faith, pays the amount of
the loss to the mortgager before the expiration of the sixty days after
the loss, and before any notice is received from the mortgagee of any
claim thereon, the latter has no claim against the company, although,
after such payment and within sixty days from the time of the loss a
notice of the lien or claim is given the company, and a suit com-
menced by trustee process to enforce it. lb.
12. Liability op Moetgagee. Under the statute providing that
any railroad corporation, by whose negligence, or by that of its ser-
vants, or agents while employed in its business, the life of any person
is lost, shall forfeit a certain sum, to be recovered by indictment, the
railroad company is not liable for the forfeiture when, at the time
of the accident occasioning the death, the possession of the road is in
the hands of mortgagees, having the entire control over it. State v.
European & N. A. B. R. Co., 67ā479.
13. Rights of Mortgagee. A mortgagee has the right to take
possession of the mortgaged premises, by lawful entry, after publica-
tion of notice of foreclosure. Stewart v. Davis, 63 ā 539.
14. As against everybody but the mortgager or his representatives,
a mortgage in fee simple conveys an absolute title and right of pos-
session. Bird V. Decker, 64 ā 550.
15. Upon an entry by the mortgagee, the mortgager is not entitled
to emblements. Oilman v. Wills, 66 ā 273.
16. The owner of land planted crops, and before they were harvested
conveyed the land by warranty deed, and took back a mortgage to secure
a part of the purchase money. Held, (1) that the crops vested in the
grantee in the deed, upon its delivery, (2) that by the mortgage they
became revested in the grantor (mortgagee), (3) that he could enter
and take them, and (4) that he would be accountable therefor in case
of the redemption of the mortgage. lb.
17. An agreement that the mortgager may retain possession of the
mortgaged property until breach of condition is not implied from a
conditional clause requiring the mortgager to provide a comfortable
home for the mortgagee, and furnish her with sufficient food, cloth-
ing, and other necessaries during her natural life. Mason v. Mason,
18. Of Moktgagee. Rents and profits of mortgaged property,
accruing while the mortgager is in undisturbed possession, belong to
him. Mnerson v. European & N. A. H. H. Co., 67^387.
19. A railroad company mortgaged "all its right, title and interest,
in and to all and singular, its property, real and personal, of whatever
nature and description, now possessed or to be hereafter acquired,"
the description also enumerating certain kinds of property, such as
franchises, easements, cars, material, etc. Held, that, at law, a sum
of money due the company for the carriage of freight, under a con-
tract entered into and performed after the execution of the mortgage,
did not become the jsroperty of the mortgagee upon his taking pos-
session of the road, as against the attaching creditors of the company.
20. The contract in this case was for the conveyance of an express
crate for five years at a certain rate, payable monthly. The mort-
gagee took possession of the road between the monthly pay days.
JBeld, in trustee process by the creditors of the railroad company,
that the pay for the month could be apportioned, that the creditors
were entitled to the portion earned up to the time when the mortgagee
took possession and the mortgagee for the portion earned after that
21. The POSSESSION of a mortgagee, after foreclosure of the
mortgage, is, at most, but a tenancy at sufferance, and may be ter-
minated at any moment without a previous notice to quit. Dinsmore
V. Savage, 68ā191.
22. The right of an outgoing mortgager, after condition broken, to
the manure produced upon a farm in the ordinary course of husbandry
by him, and while in possession of the mortgaged premises, is to be
determined by the rule of law which prevails between mortgager and
mortgagee, and not that which prevails between landlprd and tenant.
Chase v. Wingate, 68 ā 204.
23. The fact that the mortgagee, after obtaining a writ of posses-
sion, allows the mortgager to remain in possession awhile does not
change the rule, and a purchaser from the mortgager acquires no title
as against the mortgagee. lb.
24. Land Damages. A mortgagee, not in possession, but whose
mortgage is recorded, should have notice of the pendency of proceed-
ings instituted by a railway company, before county commissioners,
to ascertain the damages of land owners for land taken for the track
of the road ; if none is given, the company takes the risk of the want
of it. Wilson V. European S IST. A. R. JR. Co., 67ā358.
See Trust, 3.
III. TRANSFER OF EIGHTS IN MORTGAGED ESTATES.
25. The assignment of a mortgage must be under seal. Stanley v.
ITempton, 59 ā 472. Johnson v. Leonards., 68 ā 237.
26. Effect. An assignment by a mortgagee of a mortgage con-
ditioned for his support, is not a release of his claim for support under
the mortgage. Mitchell v. JBumham, 57 ā 314.
27. When a mortgage debt is paid by one who is bound by contract
to pay it, who pays it and takes an assignment, the assignment will
be held to be a discharge. Hatch v. Palmer, 58 ā 271.
28. The purchaser, by quitclaim from a mortgagee, who had fore-
closed the mortgage, and subsequently waived the foreclosure, has no
rights superior to the mortgagee. Dow v. Moor, 59 ā 118.
29. The assent, by a surviving mortgagee, that the administrator
of the estate of the assignee of the mortgager may succeed and take
the place of his intestate, may be given after as well as before an
assignment by the mortgagees, but cannot affect the previously ac-
quired rights of the assignees of the mortgagees. JBryant v. Jackson,
30. If a mortgager sells a portion of the mortgaged premises, the
effect is to impose the whole of the mortgage debt upon the remain-
ing portion, if of sufficient value, as against all but the mortgagee.
Wallace v. Stevens, 64 ā 225.
31. An assignment of a mortgage thus : "I hereby assign to the
said (assignee) the within mortgage deed, the debt thereby secured,
and all my right, title and interest in the premises thereby described,"
conveys to the assignee not merely the interest of the mortgagee, but
the entire mortgage. Willey v. Williamson, 68 ā 71.
32. The' assignee in such case will take the precedence, his assign-
ment being recorded, of a prior unrecorded assignment by the same
33. By Wareantt Deed. The mortgage must be regarded as
assigned when the mortgagee by deed of warranty conveys the mort-
gaged premises. Woods v. Woods, 66 ā 206.
35. A QtriTOLAiM DEED of the mortgagee to a stranger is sufficient
to assign the mortgage and all his interest under it, when no separate
obligation is given for payment of the consideration of the mortgage.
Johnson v. Leonards, 68 ā 237.
36. Or when it is accompanied by a delivery of the mortgage notes.
37. Or when it is executed by the executrix of the mortgagee. lb.
38. Or when the mortgagee is in possession. lb.
39. And, in general, when it is the intention of the parties that the
quitclaim deed shall be effectual to carry the mortgagee's interest in
the estate. lb.
40. Where the quitclaim deed was given for a pecuniary considera-
tion, to take effect immediately for the benefit of the bargainee, who
was at the time of the conveyance an owner of an undivided half
interest in part of the land, and ^Vho received from the bargainor
only a qualified warranty in consideration of the sum paid by him for
the deed of release, it was held that the deed conveyed the interest of
the mortgagee, although the mortgage note was not transferred. lb.
41. If the grantee of real estate mortgage it back to secure the
purchase-money, and the mortgagee assign bona fide the mortgage to
the wife of the mortgager, such assignment will not operate as a dis-
charge of the mortgage. Bean v. Boothby, 57' ā 295.
42. And if, when the mortgage given back for the purchase-money
of. real estate is assigned bona fide to the wife of the mortgager, the
husband quitclaim to her, and she thereupon convey to a third person,
by deed of warranty, therein referring to the mortgage, "as having
been cancelled by assignment," the mortgage will not thereby become
merged, but it will be upheld. lb.
43. Where a mortgager of real estate, in his lifetime, assigned his
property for the benefit of his creditors, and his assignees sold the
equity of redemption to the tenants, making the conveyance "subject
to a mortgage . . . to be provided for by the purchasers," a pay-
ment of the amount due on the mortgage, by the tenants, and an
assignment th^eof to themselves, operate as an extinguishment of
the mortgage ; and the mortgager's widow, if she did not join in the
deed, may recover dower in the premises, notwithstanding she joined
in the mortgage for the purpose of releasing her dower. Hatch v.
44. If a mortgager sells portions of the mortgaged premises to dif-
ferent persons, at different times, each grantee having actual or con-
structive notice of the mortgage and of the prior conveyances, the
grantees are not bound to contribute rateably to discharge the mort-
gage, but the part last sold is primarily liable in equity for the whole
debt. Wallace v. Stevens, 64ā225.
45. The acceptance of a quitclaim deed of the grantor's interest in
land, including the right to redeem the same from a mortgage, does
not impose upon the grantee an obligation to pay the mortgage debt,
and he may afterwards become the assignee of the mortgage without
thereby discharging it. Randall v. Bradley, 65 ā 48.
46. The PEESTiMPTioN of the payment of a mortgage, arising from
twenty years' possession by the mortgager without recognizing the
mortgage, may be rebutted. Jarvis v. Albro, 67 ā 310.
47. Evidence that the executor of the mortgagee found the note
and mortgage among the papers of his testator, that at the time they
were found the note was from six to ten years overdue, that nothing
was paid on it after that time, and that the executor kept the note
and mortgage from twelve to sixteen years after they came into his
hands without asserting any claim under them, was held not sufficient
to rebut the presumption of payment. lb.
48. A TENDER of the amount due upon a mortgage after condition
broken does not discharge the mortgage. Howell v. Mitchell, 68 ā 21.
49. Suing the notes secured by a mortgage, and procuring judg-
ment upon them, without satisfaction, in no way affects the validity
of the mortgage. Jewett v. Hamlin, 68 ā 172.
(a) THB EIGHT TO REDEEM.
(b) Adjustment of ACCorrNTS.
(c) Bills to bbdebm.
(a) The right to redeem.
50. Where the same person holds, as assignee, two mortgages of real
estate, the purchaser of the equity of redemption may maintain a
bill to redeem from only one of them ; nor will the expiration of the
statute term of foreclosure proceedings upon the other mortgage,
prevent a decree in his favor as to the mortgage he seeks to redeem.
Millihen v. f alley, 61 ā 316.
51. If a mortgagee in possession, after publication, of a notice of
foreclosure, is disseized by parties claiming under the mortgager,
and obtains an absolute judgment against them in a writ of entry,
such judgment will not affect their right of redemption. Stewart v.
52. A mortgage condition for the support of the mortgagee is sub-
ject to redemption after breach of the condition. Fales v. Hemen-
53. It seems that as long as a mortgagee has a right to redeem any
portion of the mortgaged premises he has a right to redeem the whole.
Howard v. Houghton, 64ā445.
(b) Adjustment of accounts.
54. When a mortgagee in possession either actually receives rent,
or ought to have received it, he will be held accountable therefor to
the person entitled to redeem. Milliken v. Bailey, 61 ā 816.
55. MoETGAGB FOE SuppoET. Where by the terms of the condition
the mortgagee was to be maintained upon the mortgaged premises
the complainant cannot object to a reasonable allowance by the
master, for the support of the mortgagee off from the premises,
when the complainant had neglected to furnish means for his support
on them. Mitchell v. Burnham, 57 ā 314.
56. Nor, for support accruing after an assignment by the mortgagee
to one of the beneficiaries named in the condition, when such assign-
ment was not made until a breach of the condition, nor until after an
assignment by the mortgager to the complainant, who, with the
mortgagee's assent, had undertaken, but failed to fulfil the condition
of the mortgage. Ih.
57. Such an assignment by the mortgagee, is not a release^and dis-
charge of his claim for support under the condition of the mortgage.
58. Such assignee of the mortgagee, may claim for the future sup-
port of the mortgagee and other beneficiaries named in the condition,
on the failure of the assignee of the mortgager to furnish it. lb.
59. Nor can the complainant object to an allowance for support of
the mortgagee, actually incurred by the respondent after she had
assigned for a time the legal title in trust for the beneficiaries named
in the condition. Ih.
60. Nor can the complainant object that the respondent is not
charged with the rents and profits after the building on the premises
were burned, and the complainant had collected the insurance thereon,
and placed a tenant of his own on the premises. lb.
61. DowEE. When the widow of a mortgager brings a bill in equity
to redeem the mortgage, that she may have dower, the mortgagee
must account to her for the rents and profits from the date of his
entry into possession under the mortgage, and not merely from the
time an account was first demanded of him by the dowress. Dela v.
Stamoood, 62 ā 574.
62. If a mortgagee recovers for rents in a writ of entry on the
mortgage, in which he has absolute judgment, he must account for the
sum recovered if the mortgage be redeemed. Stewart v. Davis, 63
ā539. See also Qilman v. Wills, 66ā273.
63. Auction Sale. The plaintiff held, by assignment from the
defendant, a mortgage on real estate in Massachusetts, containing a
power to sell upon breach of condition, in pursuance of which, after
due notice, a sale was made at public auction, in August, 1859, and
the property struck off for $1,950 to the plaintiff's agent, who,
without paying the price, conveyed the property to the plaintiff, who
indorsed upon the note the amount of the agent's bid, less expenses
of sale and amount paid by him on a prior mortgage, and some years
later brought this suit to recover a balance due on the note against
the defendant, as indorser. The defendant offered to prove, that in
March, 1861, the property was sold for $2,300, and claimed that that
sura should be allowed as paid on the note, and that the sale, made in
1859, should be treated as a nullity. Held, that in the absence of any
evidence tending to show fraudulent practices on the part of the holder
of the mortgage in making the first sale, or that the property was
fairly worth more at that time than the auction price, this claim must
be disallowed, and the evidence that the property sold for a larger
sum at a later period rejected. Patten v. Pearson, 57 ā 428.
64. It seems, that a sale under such circumstances, where the
mortgagee or trustee becomes the purchaser, is voidable by the
mortgager, or cestui que trust, in equity within a reasonable time, but
cannot be treated as absolutely void in a suit at common law where
there is no evidence of actual fraud or unfair practices. lb.
65. One of the defendants (Savage) in a bill to redeem conveyed
the land in question, by deed of warranty, to Charles Bean and
Joseph Bean, taking back the mortgage, from which the plaintiffs
claim to redeem, to secure the greater part of the purchase money.
At the time of this conveyance, Thomas F. Chase was in possession
of the land, claiming that he had an existing right to redeem it from
a former mortgage given by him to Savage. This claim was un-
founded, the mortgage having been legally foreclosed, but Chase
refused to surrender the land to either Savage or his grantees, and
held it, in spite of all efforts to remove him, for more than seven
years. Held, that the owners of the right to redeem, by virtue of a
title derived from the Beans, were not entitled to have the defendants
charged with rent or damages equal to the income of the land for
the seven years that Chase occupied, and to have that amount de-
ducted from what would otherwise be due upon the mortgage.
Dinsmorey. Savage, 68 ā 191.
66. Improvements. Upon a bill to redeem a mortgage, the sum
to be paid by the mortgager, to entitle him to redeem, may include
the value of improvements made by the mortgagee in good faith and
in the honest belief that he was the absolute owner of the premises,
and in some degree authorized by the acts and omissions of the oppos-
ing party. Pitman v. Thornton, 66 ā 469.
67. Insueancb. a mortgager can not require a mortgagee to
account to him for money received for insurance, where there is
no contract between them to that effect, and the insurance was pro-
cured by the mortgagee for his own benefit, and the premium paid
out of his own money. Mclntire v. Plaisted, 68 ā 363.
(c) Pills to redeem.
68. A bill to redeem land mortgaged may be brought in the county
where the defendant resides, although all the land is situated in other
counties. Smith v. Larrabee, 58 ā 361.
69. The right to redeem is a right which can be enforced only in
equity ; it cannot be enforced in a suit at law. Randall v. Bradley,
70. Demand eoe an Account. If a mortgagee does not object to
rendering an account to one claiming to be the owner of the equity
of redemption, and demanding an account, but does render an
incorrect statement, he can not afterwards urge a technical defect
in the title of such person, at the time of the demand, which has
been cured by amendment. Milliken v. Bailey, 61 ā 316.
71. A demand for an account by the holder of an equity of redeem-
ing one of several tracts of land embraced in the same mortgage, will