Flint v. Winter Harbor Land Co.

36 A. 634, 89 Me. 420

Opinion

Stbout, J.

The complainant is the holder of a mortgage upon real estate given by the Winter Harbor Land Company to Alice I. Hammond, and by her assigned to complainant. Two of the bills are to recover accrued interest upon tbe mortgage debt, and tbe third to recover the excess of the mortgage debt over the value of the estate mortgaged. The mortgage has been foreclosed, and complainant has full title to the premises. He alleges that the mortgaged property is of less value than the amount of the mortgage debt. This is denied by the West Shore Land Company, who hold a conveyance of the property from the Winter Harbor Land Company, which was made subject to this mortgage, and contains the provision “which said mortgage this grantee by acceptance of this deed hereby assumes and agrees to pay and fully discharge.”

Under this provision in the deed, the West Shore Land Company became liable to the holder of the mortgage, for the entire mortgage debt. It was part of the purchase money, and the promise to pay it was a promise to pay its own debt and not the debt of another within the statute of frauds. Complainant not being a party to that deed, he may have remedy in equity, against the mortgagor and his grantee, or implied assumpsit against either. Baldwin v. Emery, post.

Having acquired absolute title to the mortgaged property, the debt is thereby paid if the value of the property equals or exceeds the amount of the debt. If less than that, complainant is entitled to recover the deficiency from the original mortgagor, or from its grantee, and will be entitled to separate decrees against each for the full amount of such deficiency, — he can have, however, but one satisfaction.

The cases must go to a master to ascertain and report to the court the value of the mortgaged property, at the date when complainant’s title became absolute, and the amount of the mortgage debt at the same date. Upon the coming in' and acceptance of his report, final decree to be made.

Bill sustained. Master to he appointed.