Hammond v. Reynolds

It is provided in the Revised Statutes, c. 81, § § 57-58, that when a right to redeem real estate under mortgage is attached, the plaintiff in the suit may pay or tender to the person entitled thereto, the amount required to discharge the mortgage,, and that thereby the title and interest of such person shall vest in the plaintiff, and that such person shall release his interest in the premises; and if he refuses, may be compelled to do so by bill in equity. The plaintiff, claiming that he had made such an attachment of the equity, paid to an assignee of the mortgage the amount due upon it, four hundred and thirteen dollars and fifty cents, and obtained the release provided for in the statute. The plaintiff now brings this action (a writ of entry) to recover possession of the premises; and the question is whether his title, thus obtained from the assignee of the mortgage, is sufficient to-*516maintain the suit against the defendants (husband and wife), the latter claiming to be the owner of the equity of redemption. We think it is. The presiding judge, to whom the case was •submitted upon an agreed statement of facts, so ruled. We think the ruling was correct. It may be true, as the defendants contend, that the équity was not legally attached, and that the assignee of the mortgage could not have been compelled to release his interest to the plaintiff; but he did do so, and accepted the plaintiff’s money, and still retains it; and, so far as appears is content to allow the release to remain unrescinded; and we think it is not competent for the defendants to interfere and claim to rescind it for him. It is no concern of theirs. If they choose to redeem, and still have a right to do so, they can redeem from the plaintiff as readily as they could have done from his releasor. The statute gives them this right. As their titles now stand, the plaintiff’s is superior to theirs, and he is entitled to possession of the premises, as ruled by the judge at nisi prius.

Exceptions overruled.