Pomroy v. Rice

33 Mass. 22

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1834
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. It has been contended by the counsel for the defendant, that the evidence reported shows a payment of the notes mentioned in the mortgage deed set up by the plaintiffs, and consequently that the mortgage is discharged. But it is, we think, a well settled principle, that where a mortgage and note are given to secure the payment of a sum of money, the renewal of the note does not operate as a discharge of the mortgage. In Davis v. Maynard, 9 Mass. R. 242, the note was given up, and a recognizance was accepted for the. sum due, and this was held not to discharge .the mortgage. The mortgage and the note, it is said, are two distinct securities. Nothing but payment of the debt will discharge the mortgage. In Watkins v. Hill, 8 Pick. 522, it was held, that the renewal of a note secured by mortgage did not discharge the mortgage, it not being intended as payment. A remark is made in that case, from which an inference is made, that the case might have been decided differently if the action had been against a purchaser under the mortgager. We are of opinion, however, that it could have made no difference. The mortgagee’s security cannot be impaired by any conveyance made by the mortgager.

It has been argued, that taking the-new notes is prima facie evidence of the payment of the old. But if it were, the circumstances under which the notes were renewed are abundantly sufficient to rebut any presumptive evidence, that the mortgage debt was paid. Tidd was requested to have the notes renewed, which esc vi termini rebuts the presumption of payment.

Judgment for the plaintiff.