Foster v. Wightman

123 Mass. 100, 1877 Mass. LEXIS 218

Opinion

Morton, J.

The. plaintiffs having discontinued against the defendant Wightman, the case stands as if Foster had brought the bill against Goodrich alone to restrain him from foreclosing his mortgage by a sale under the power therein contained. The principles which control it are the same as if Goodrich had brought a writ of entry to foreclose his mortgage. This being so, the case is governed by Fairfield v. McArthur, 15 Gray, 526, in which it was held that a grantee of a mortgagor could not set up, in defence of a writ of entry to foreclose the mortgage, the fraud of the mortgagee, though the plaintiff, who was assignee of the mortgagee, took it with notice of the fraud. The deed of Mary Hersey to Foster did not pass any right of action which the mortgagors may have had against Wightman for deceit or fraud in procuring the mortgage. Such fraud being proved, they might elect to avoid the mortgage; but they may now bring an action against Wightman to recover damages for such deceit or fraud.

It follows that in this suit the plaintiff Foster can redeem only by paying the full amount due on the mortgage note. As he admits that he is unwilling to redeem by paying the note, the bill must be dismissed. Decree affirmed.