Warden v. Adams

15 Mass. 232

Opinion

By the Court.

By force of our statutes regulating the transfer of real estates and for preventing frauds, no interest passes by a mere delivery of a mortgage deed, without an assignment in writing and by deed, (a)

An assignment, made by a separate deed, without the delivery over of the original mortgage deed, conveys all the interest of the mortgagee, and makes the grantee the assignee of the mortgage.

* The knowledge imputed in this case to Hamilton, the assignee, of an intention on the part of Earle, the mortgagee, to assign the mortgage to the demandant, does not impair the tenant’s title — he being a bona fide creditor, and having a right, by his vigilance, to secure his demands in this way, just as he would have had by an attachment, although he might know that another creditor intended to make an attachment, and had taken incipient measures therefor. The nonsuit is not set aside. (b)

Judgment for the tenant for his costs.

Footnotes

(a)

а) Bunjan vs. Mersereau, 11 Johns. 534.— Wilson vs. Troup, 2 Cowen, 196.

(b)

M Mechan vs. Griffing, 3 Pick. 149.— Cushing vs. Hurd, 4 Pick. 253.—Newnall vs. Burt, 7 Pick. 157. — Hurd vs. Cushing & Al. 7 Pick. 169. — Doe vs Alsop, 5 B & Ald. 142. -M'Neil vs. Cohill, 2 Bligh. 228.