Stevens v. Dedham Institution for Savings

Soule, J.

The only question before us in this cause is as to the right of the plaintiff to redeem certain real estate from mortgage. He does not seek to recover the proceeds of land sold.

The defendant corporation, as assignee of the mortgage given by Hawes to the plaintiff, was entitled to institute proceedings for foreclosing the mortgage; and the judgment in the suit for foreclosure, followed by possession for three years, made the title of the corporation absolute as against the mortgagor. But, the mortgage having been assigned as collateral security for the note of the plaintiff, the foreclosure did not work a payment of that note, but left him with the right to redeem the land by paying his note so far as it had not been paid by the rents and profits of the land. The defendant corporation held the land by a title absolute as against Hawes the mortgagor, but as security merely for its debt against the plaintiff. Its interest in the land, though not in the ordinary record form of a mortgage, was in fact a mortgage interest, liable to be defeated by the payment of the plaintiff’s note. The land in its hands was affected by a trust, to convert it into money and pay over any balance of the proceeds remaining after payment of the debt due from the plaintiff to him, or, if he paid the debt, to release and quitclaim the land to him. Brown v. Tyler, 8 Gray, 135 . Montague v. Boston & Albany Railroad, 124 Mass. 242 .

The plaintiff contends that, because this relation of mortgagor and mortgagee existed between it and the defendant corporation. *550 and no peaceable entry was made and evidence of it recorded, by the corporation or any other of the defendants, for the purpose of foreclosing the mortgage from the plaintiff, the title still remains a mortgage title, notwithstanding the lapse of time and the repeated conveyances. In taking and endeavoring to maintain this position, the-plaintiff fails to give full effect to some of the facts of the case, and assumes that the sale of the land by the corporation had no effect on his rights in the land.

The corporation went into possession in the year 1848, under its judgment against Hawes, and the possession then obtained has been ever since maintained by it and its assigns. It was entitled to take this possession as against Hawes, as being the assignee of the mortgage made by him; and as against the plaintiff, as being his mortgagee. From the year 1848, then, for more than twenty years before the plaintiff’s bill was filed, the corporation and its assigns were in possession of the premises, and, as the plaintiff insists, no payment of interest or principal was made during all this time. The note of the plaintiff to the corporation was overdue when possession was taken under the mortgage.

In this state of facts, if it be assumed that the sale of the land by the corporation did not put an end to the plaintiff’s rights therein, the right to redeem is not to be favored. Equity has adopted twenty years after breach and possession taken by the mortgagee, no interest having been paid meanwhile, as the period beyond which a mortgagor will not be admitted to redeem, without special cause. Ayres v. Waite, 10 Cush. 72 . And this rule applies between the mortgagor and his mortgagee. The plaintiff shows no special cause. It appears that he was cognizant of the proceedings of the corporation to foreclose the mortgage; and if he failed to understand the effect of those proceedings on his rights, his mistake in that regard is not one for which the holder under the mortgage is responsible, or which in any way affects its rights.

The statement which the plaintiff testified that the officers of the Institution for Savings made to him, that “they had foreclosed absolutely against him,” was a statement of opinion as to the legal effect of what they had done, rather than a misstatement of facts, and, if it was erroneous, was one on which he cannot now rely as an excuse for not protecting himself in due time.

*551 We are of opinion, therefore, that, independently of the evidence offered by the defendants to show a settlement of the whole matter by the plaintiff and the corporation in the year 1852, no case is made for the maintenance of the bill.

If that evidence were admitted, and interpreted as the defendants contend that it should be, it would be decisive against the plaintiff. It is unnecessary to inquire into its admissibility, because, if admitted, it would not affect the decision of the case.

Bill dismissed, with costs.