Allen v. Leominster Savings Bank

134 Mass. 580, 1883 Mass. LEXIS 357

• Court: Massachusetts Supreme Judicial Court
• Decided: April 4, 1883
• Status: Published

Opinion

Devens, J.

The statutes of the Commonwealth provide two ways by which a mortgage may be discharged; namely, by an entry acknowledging satisfaction thereof, made on the margin of the record of the mortgage in the registry of deeds and signed by the mortgagee, and also by a deed of release duly acknowledged and recorded. Gen. Sts. c. 89, § 30. Pub. Sts. c. 120, § 24.

When the mortgagee joined in a conveyance of the mortgaged premises, for the purpose of discharging the mortgage, although her name was not in the granting clause, she in effect released the premises from the incumbrance which the mortgage had theretofore been upon them, so far at least as the savings bank was concerned. The words are not to be construed as the mere declaration of a purpose, but constituted an act, when her hand and seal were affixed thereto, by which her purpose was accomplished.

It is said that there is no grantee in this discharge, but the intent of that which was done was that the savings bank, which was named in the granting portion of the deed, should secure a good title, and the bank must be held to be the grantee, if any be necessary. We are not prepared to say that any is necessary. The deed of release referred to in the statute, like the entry of satisfaction upon the record, is a mode of discharging the mortgage, intended to operate for the benefit of any one who may possess the title to the real estate upon which it is an incumbrance.

Nor is the effect different if it be held that this discharge would operate only as an estoppel. It is an estoppel that binds her and those who claim* under her.

As the signature of the mortgagee discharged the premises conveyed from the mortgage, the acknowledgment of one of the grantors was sufficient. Pidge v. Tyler, 4 Mass. 541. Shaw v. Poor, 6 Pick. 86. Judgment affirmed.