John A. Merriam vs. Jonathan Bacon, 5 Met. 95

Shaw, C. J. The note had been assigned by the payee, with notice to the promisor, the present defendant, long before the alleged payment by Frederic Bacon, now relied upon ; a payment therefore by the promisor himself, to the original payee, would have been a payment in his own wrong: The question is, whether he can avail himself of a payment, made by Frederic Bacon, his son, not a party to the note, hut a co-mortgagor, in a mortgage given to secure it.

This question is to be considered on the ground that the payment was actually made by Frederic Bacon to the original payee, in good frith, and without actual notice of the assignment. If such payment was made at the actual request of his father, then he acted in behalf of the father, and as his agent, and must be affected with notice of any thing which would affect the father; or, to state the proposition a little differently, the present defendant cannot avail himself of a payment made at his actual request by another person, which he could not have availed himself of, had he made the payment personally.

But the only plausible ground on which to distinguish a payment made by the son, from one made by the father, is, that Frederic was independently liable for the debt, by having pledged his estate for the payment; and therefore payment of the debt of the principal, under a legal liability, was a request in law, as in case of payment by a surety or co-obligor, which rendered it a payment for the principal. Let us examine this ground. Not being a co-promisor, or personal surety, his only liability was that oi a mortgagor. He was a mortgagor 'after condition broken, and his only title was a right to redeem.

But a mortgage in fee is a conveyance of real estate; it is in its nature assignable and transferable ; and by a legal assignment, the fee vests in the assignee ; an estate which cannot be devested by the release of the original mortgagee. By Rev. Sts. c. 107, § 14, “ the person entitled to redeem the estate shall pay to the mortgagee, or to the person lawfully claiming or holding under him, the whole sum.” It appears that the alleged payment was made June 23d 1840, and the assignments of the mortgage were recorded April 5 8th 1840, two. months before.

He had therefore full constructive notice of the assignment of the mortgage. He was bound only through the mortgage of his real estate ; and of the transfer of real estate, registration of the deed is conclusive evidence of notice. Had he, when he made this payment, inquired for the note, he would have found that the promisee had it not in his possession ; had he inquired for his own original deed, he would in like manner have found that it was not in the .possession of the original mortgagee, or if it was, that it had an assignment, duly executed, indorsed upon it.

In every point of view, in which it can be considered, we think it was a payment in his own wrong, and if made without the actual request of the defendant, he could not have recovered the amount of him, because it was not made for his use, did not discharge his debt, nor enure to his benefit. We are therefore of opinion, that the defendant cannot avail himself of it, as a payment, in defence of this action.