Reuel Howard vs. Mercy G. Howard, 3 Met. 548

Wilde, J. This case depends on the validity of the plaintiff’s title. The action was commenced before a justice of the peace, upon the Rev. Sts. c. 104, § 4, providing a remedy in cases of forcible entry and detainer. At the trial, however, the question, whether or not a forcible entry or detainer had been proved, was waived by consent of parties, and the case was submitted on the question as to the legal title. Both parties derive their titles from William Trumbull, who mortgaged the premises, in 1832, to Henry Hatch ; and from this mortgage the plaintiff derives his title.

It was proved at the trial, that this mortgage had been assigned by said Hatch to Charles Hood. It was afterwards assigned by Hood to Boyd Howard, and was by him assigned to the plaintiff. If this mortgage is a subsisting mortgage, and the said several assignments are valid, the plaintiff has the legal title and the right of possession ; as the defendant claims under a subsequent deed from Trumbull, made in 1835, by which the premises were conveyed to one Isaac Whitman in fee, in trust for the defendant.

To impeach the plaintiff’s title, the defendant called the said Hood, from whom Boyd Howard procured the assignment of the said mortgage, who testified that he received payment of the mortgage from a person whom he did not know, and supposed the payment was made on behalf of Trumbull ; and that it was not his intention to assign the mortgage. But it was testified by Justin Field, that he wrote the assignment, saw it executed, and attested it as a witness ; and that he told Hood that he and Howard had come to get an assignment, if he was willing to assign.

This evidence was admitted, to avail as far as it should be considered competent. We consider it clearly incompetent, so far as it contradicts the written assignment. It has been argued by the defendant’s counsel, that the trans action was fraudulent. But we do not find in the report of the evidence any matter to support the charge of fraud. The assignment of the mortgage could not operate to the injury of Trumbull ; for when he conveyed the premises to Whitman, he conveyed with warranty, and agreed to pay and procure a discharge of the mortgage.

It was therefore immaterial to .him, whether he paid the balance to Hood or to his assignee ; but if Boyd Howard had paid and discharged the mortgage, he would have had no legal right to recover from Trumbull the money paid, as it was not paid at his request. But however this may be, the assignment could in no respect operate to the injury of Trumbull. Nor was it fraudulent as to the defendant, although the mortgage was paid with the money received by Boyd Howard in payment of a legacy to the defendant, and although he had before agreed that the premises should be held in trust for his wife.

So far as this post-nuptial agreement was executed by the conveyance of the property to the trustee, it was binding, and the property could not be reclaimed ; but, so far as the agreement was executory, it was clearly not obligatory. And although the money paid was received in payment of a legacy to his wife, it was not her money, but was his, after he had reduced it to possession. And besides ; the defendant has her remedy against Trumbull on his covenant of warranty ; and he, as before remarked, was bound to pay and discharge the mortgage.

In no respect, therefore, can the assignment procured by Boyd Howard be considered as a fraudulent act. So that the paroi evidence to prove that the mortgage was not intended to be assigned is inadmissible. ■It was, however, contended by the defendant’s counsel, that the evidence of payment is competent, and that payment of the mortgage debt would be a discharge of the mortgage ; so that if it were afterwards assigned, no title would pass by the assignment.

If this objection were well founded,.-the question of fact should have been decided by the jury ; for the testimony of Hood and that of Field, on this point, are conflicting and irreconcilable. But we are of opinion that the objection cannot be maintained, however the fact may be. The payment of the mortgage debt, after condition broken, does not extinguish the legal title of the mortgagee. This has been so repeatedly decided, that it is no longer an open question. The remedy for the mortgagor, or those holding under him, in such case, is by a bill in equity.

If this were an action to foreclose the right of redemption, the objection would be material ; for if the mortgage debt has been paid, the plaintiff would not be entitled to a conditional judgment. But in an action for a forcible entry or detainer, this difficulty does not occur. Boyd Howard, before his wife’s divorce from him, had entered upon the pre.i ises for condition broken ; but whether this entry were legal and available in favor of the plaintiff, so as to foreclose the defendant’s equity of redemption, is not a question to be considered in the present case.

The only question submitted is, whether the plaintiff is entitled to possession, upon the title proved ; and we are of opinion that he is so entitled. According to the agreement of the parties, therefore, the non-suit must be set aside, and judgment rendered for the p’aintiff ■>n default.