Fiske v. Ruggles

70 Mass. 528

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1855
• Status: Published

Opinion

Metcalf, J.

The court are of opinion that the demandant cannot retain his verdict. It seems to us to be very clear, on reading the recital prefixed to the agreement of June 18th'1851, that the true construction of that agreement is, that the mortgage' should be void, if Fiske should, at cmy time within two years from the date of the note which was secured by the .mortgage, sell the farm in Newton for $4200 or more, or, having opportunity so to do, should refuse. This agreement was made for the benefit of the mortgagor, and the mortgagee must be held to have thereby bound himself, by necessary implication, not to do any thing which should deprive the mortgagor of the benefit of it. Yet Fiske, the mortgagee, by selling and conveying the farm for a less sum, within two months from the date of his agreement, deprived himself of the power to sell it for $4200 or more, though he had an opportunity so to do. The tenant therefore has the same defence against this action, that he would have had, if the mortgagee had sold the farm for the sum mentioned in the agreement. Hopkins v. Young, 11 Mass. 306. Newcomb v. Brackett, 16 Mass. 165. Lovelock v. Franklyn, 8 Ad. & El. N. R. 378. Nichols v. Freeman, 11 Fed. 99. Vin. Ab. Condition, A. c. As the demandant had notice of this agreement, before he took an assignment of the mortgage, the tenant has the same defence against him, which he could have made to an action brought by the mortgagee.

New trial in this court.