Exchange Trust Co. v. Hitchcock

144 N.E. 373, 249 Mass. 547, 1924 Mass. LEXIS 1073

Opinion

Wait, J.

The law of this case is settled by Richardson v. Washington Bank, 3 Met. 536, Wilcox v. Fairhaven Bank, 7 Allen, 270, Fall River National Bank v. Slade, 153 Mass. 415, and Boston Safe Deposit & Trust Co. v. Manning, 211 Mass. 584. The case differs entirely from Fitcher v. Griffiths, 216 Mass. 174, and from Ricker v. Ricker, 248 Mass. 549.

The contentions of the defendant rest throughout on a misapprehension of fact. The mortgage held as security for the note in suit was not made, as she contends, “ for the sole purpose of securing the note.” Its condition recites “ that if the grantor . . . shall pay . . . two thousand dollars ... in one year from this date, with interest ... at the rate as stated in a note of even date and given herewith, (together with any other liability or liabilities, direct or indirect of the grantor or either of them, to the holder or holders hereof, due or to become due, or which may hereafter be contracted) . . . then this deed, as also a promissory note-of even date herewith . . . shall be void ”; and thus makes clear, since it is the condition of the mortgage referred to in the margin of the note in suit, that the security may apply, and in terms is made applicable, to other indebtedness of Frederick C. Hitchcock, then or thereafter existing.

The cases cited establish that the creditor in applying the proceeds of foreclosure as it has done, was wholly within its rights. The defence fails; and the order must be that a final decree be entered for the plaintiff in accordance with the terms of the report.

So ordered.