Saunders v. Dunn

In an action at law to foreclose a mortgage, or in a bill to redeem, the mortgage is only available to secure the performance of the condition. If this condition is the payment of money, the question is how much in equity and good conscience, under recognized rules of law, is due the mortgagee. Vinton v. King, 4 Allen, 562. Holbrook v. Bliss, 9 Allen, 69. In Wearse v. Peirce, 24 Pick. 141, it was held that where a mortgage is given as security for the payment of a promissory note, it may be shown that the note is without consideration, and that therefore the mortgage cannot be enforced. In Hannon v. Hannon, 123 Mass. 441, the same doctrine was applied to a mortgage, the condition of which was the payment of a sum of money stated in the mortgage, with a reference to a promissory note for the same amount, given as a personal promise to make the same payment. The decision in this case fully covers the questions argued by the defendant in the case at bar. The provisions of the mortgage in respect to payment are substantially the same, and the evidence to show that the promise to pay was without consideration was like that now before us.

The admissions of the mortgagee were rightly - received, and the judge properly found that the note and mortgage were without consideration, and should be given up and cancelled. See also Freeland v. Freeland, 102 Mass. 475; Donohue v. Chase, 139 Mass. 407.

Exceptions overruled.