Fowler v. Rice

34 Mass. 100

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1835
• Status: Published

Opinion

Wilde J.

drew up the opinion of the Court. On the facts in the case the plaintiff contends that he has a right to redeem as in case of a mortgage, the estate having been conveyed to the defendant as a pledge or security ; and that his bond to Pease may be considered in a court of equity as a defeasance of the deed to him from Fainam. This might be admitted if this Court had full chancery powers in respect to mortgages. But the powers of the Court in this respect, are very limited ; and although by the St. 1817, c. 87, we have jurisdiction as a court of equity in all cases of trusts arising under deeds, yet this statute has never been held to apply to mortgages. We are therefore of opinion, that by our laws the fee in the premises, by the deed from Farnam to the defendant, vested absolutely in the grantee, and that the bond from him to Pease cannot operate as a defeasance, so as to convert it into a mortgage.

Nor has the plaintiff any right to claim specific performance of the condition of the bond ; for he is not the assignee of Pease. The bond has been assigned by him to one Merwin., who has demanded a deed of the premises, and to whom the defendant has conveyed the same, as he was bound to do.

Bill dismissed.