Brown v. Stewart

Alvey, J., delivered the opinion of the Court. This is a very plain case, and it requires no extended discussion to decide it. The mortgage made to Blanchard, as trustee of the estate of Waters, bears date the 23rd of December, 1869; and subsequently thereto Mrs. Read, the mortgagor, becoming insolvent, made a deed of assignment of all her property, of every kind and description, to Stewart and O’Donnell, trustees, for the benefit of her creditors generally ; the deed of assignment providing for payment of the debts according to legal priority. Prior to the mortgage of the 23rd of December, 1869, now in question, Blanchard had loaned Mrs. Read other sums of money, being part of the trust funds in his hands, and taken mortgages as security therefor on other property than that embraced in the mortgage in controversy ; and a considerable amount of money still remains due and owing on these prior mortgages.

By the mortgage of the 23rd of December, 1869, now the subject of contention, it is recited that the mortgagor had ⁴²⁹ covenanted to pay the mortgage debt on or before January 1st, 1818, with interest, &c.; with a proviso, that if she, her representatives or assigns, should well and truly pay, or cause to he paid, to Blanchard, the trustee, or his successors in the trust, the mortgage debt of $10,000, and interest, as in the mortgage set forth, and perform all the covenants on her part to be performed, “ then this mortgage shall be void.” It is admitted that the mortgage debt, with all interest thereon, had been fully paid before the time designated in the mortgage ; and it is not claimed or pretended that any covenant on the part of the mortgagor remained unperformed. There was therefore no breach or default on the part of the mortgagor or her assigns. Blanchard, the mortgagee, has died, and the appellant has succeeded him in the trust; and O’Donnell, one of the assignees of Mrs. Read, having died, Stewart is the surviving assignee or trustee for the benefit of the creditors of Mrs. Read, under the deed of assignment. The hill in this case was not filed for redemption of the , mortgaged premises, hut it was filed by the surviving trustee under the deed of assignment, for the purpose of procuring a release of record of the mortgage of the 23rd of December, 1869, and thus to have removed what was supposed to he a cloud upon the title to a portion of the mortgaged premises.

The appellant, while admitting the full payment of the mortgage debt before it fell due, according to the terms of the mortgage, insists that he holds the legal title under the mortgage, and that he should not he required to release or surrender that legal title until he is paid what remains due on the prior mortgages, and which the property embraced in those mortgages is largely insufficient to pay. He insists that he has such right or interest in the mortgage sought to he released as will enable him to require, as a condition of executing the release, the payment of the balance due on the prior mortgages ; and ⁴³⁰ that this is justified by the doctrine of tacking or consolidation of securities, as enforced by Courts of- equity. There is, however, no sort of ground for-this contention, either by the law of this State, or that of England. In the first place, it being conceded that the mortgage debt has been fully paid, it has long been the settled law in this State, that, even in Courts of law, after the mortgage is satisfied, the legal estate is regarded as having reverted to and become vested in the mortgagor, or those claiming under him; and that the mortgagee can neither recover in ejectment upon such mortgage title, nor set it up in defence, as against the mortgagor, or those who may hold under him.

Morgan vs. Davis, 2 H. & McH., 9 , 17; Paxon vs. Paul, 3 H. & McH., 399; Beall vs. Harwood, 2 H. & J., 167 . But here, the mortgage having been satisfied before the day of payment, and there being, consequently, no forfeiture, by the express terms of the condition, the mortgage, ceased to be operative, and is declared to be void. In such case, according to all the authorities, the land returns to the mortgagor, without any re-conveyance or release, by the simple operation of the condition, free and clear of the mortgage. 2 Prest, on Conv., 200, 201; 4 Kent Com., 193; 2 Washb. R. Prop., (3rd Ed.,) 162, and cases there cited.

And, according to our decisions, to which we have referred, substantially the same result follows, whether the