Washburn v. Goodwin

Wilde J.

delivered the opinion of the Court. We do not perceive any distinction in principle, between this case and that of Atkins v. Sawyer, 1 Pick. 351 ; in which it was decided, that a sale of an equity of redemption made for the purpose of paying the debt secured by the mortgage, was unauthorized by law and void. In this case the equity was sold to satisfy in part a judgment recovered by an assignee of the mortgage ; but this makes no difference, for the assignee has the same rights which the mortgagee had, and no greater, and by the sale of the equity he could obtain no additional security. If the mortgage debt had been assigned without the mortgage, the sale would have been valid, according to the decision in Crane v. March, 4 Pick. 131. But here, the mortgage having been assigned with the debt, the case cannot be distinguished from that of Atkins v. Sawyer.

Nor does it make any difference, that John Goodwin, the son of the mortgager, after his decease gave his note for the amount due on the mortgage, and that the equity was sold to satisfy a judgment recovered on that note. This note was given merely as additional security, and operated as such as to the sale of the property which was not included in the mortgage. But the mortgage was not discharged. The assignee still held the original note against the mortgager, and the proceeds of the sale of property on the execution against John Goodwin were indorsed on the note against James Goodwin, the mortgager.

On these grounds we are of opinion, that the sale of the equity is void ; and the plaintiff’s title fails.

Plaintiff nonsuit.