DEB DEPON vs. SCAYEA SHAWYE & another.

WAIT, J. The plaintiff brought this bill for review of a decree entered in the Superior Court upon a bill in equity filed by the defendant, Shawye, against him and one Hamway. That decree recited that Shawye was owner of certain premises in Brockton subject only to a mortgage held by the Peoples Savings Bank of Brockton; that a foreclosure sale of said premises, held January 22, 1925, by virtue of the power of sale contained in a mortgage dated October 15,1921, from Shawye to Hamway was null and void; that mortgagee's deed from Hamway to Depon, dated January 22, 1925, was null and void; that a peaceable entry made on the premises for the purpose of foreclosure and the record thereof were null and void; that Shawye was entitled to redeem from the mortgage dated October 15, 1921, and on October 15, 1923, the due date, tendered the amount justly due; that it ordered Hamway to discharge and cancel that mortgage of record by a proper instrument of discharge. It further ordered execution to issue against the present plaintiff Depon, then the codefendant, in an amount recited to be the balance after deducting from rents received by him from the premises less his disbursements and the sum of $136, the balance due as principal and interest on said mortgage dated October 15, 1921; ordered Depon to surrender possession of the premises to Shawye, and to surrender, deliver up and cancel the mortgage deed, to sign, execute, acknowledge and deliver a discharge of that mortgage and to sign, execute, acknowledge and deliver a deed or other proper instrument to release all interest acquired by him by virtue of that deed. It decreed further that the mortgage and the mortgagee's

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deed under the power of sale should no longer be hens upon the premises against Shawye or any one claiming under her, and that Hamway, Depon, and all persons claiming under either or both are debarred and enjoined perpetually from collecting upon either and from setting them up against the premises. It further ordered a trustee, who had been by stipulation appointed to receive and hold rents and profits pending an appeal, to pay over a fixed sum to Shawye, and it awarded costs in a fixed sum. This court, by rescript entered October 18, 1926, dismissed an appeal from the decree because the plaintiff failed to enter it seasonably.

The bill of review recited the earlier proceedings and alleged that error appeared on the face of the record because it nowhere showed that there had been any compliance by Shawye with G. L. c. 244, § 21, or that Shawye had paid into court the amount due on the mortgage or had obtained an injunction restraining the foreclosure sale in. accord with G. L. c. 244, § 22, or that Depon had acted fraudulently. The defendant demurred. The Superior Court sustained the demurrer, and the plaintiff appealed. The grounds of demurrer were lack of equity, res judicata, multifariousness, that the matters set out were not subject to review, and that a bill of review will not lie where a final decree after rescript in form prescribed by the court has been entered after the Supreme Judicial Court has dismissed an appeal for want of seasonable prosecution.

The plaintiff's bill is bad because it discloses no error of law and because it shows no equity. The plaintiff purchased for value at a foreclosure sale, held January 22, 1925, which was perfect in its compliance with formal requisites for such a sale. The fatal defects were, that the mortgagee's title had come to an end on October 15, 1923; that he had no power to sell when he attempted to do so in January, 1925; and that the plaintiff had notice of these facts.

A mortgage deed conveys a title determinable on a condition subsequent. Erskine v. Townsend, 2 Mass. 493. If the condition is performed, the estate of the mortgagee ends. If it is not performed, then the estate continues but, by force of law, is for a time defeasible if certain things are

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done by the mortgagor or whoever has the rights of the mortgagor. Bayley v. Bayley, 5 Gray 505, 509. Here there was no defeasible title in the mortgagee to be redeemed by the mortgagor. When Shawye made a valid tender of what was due on the due date she performed the condition subsequent. Hamway's title ended then and there, and Shawye was back in full ownership with perfect title against Hamway. Neither Hamway nor any one claiming under him or by virtue of any power previously held by him with knowledge of the facts could thereafter assert title successfully. Merrill v. Chase, 3 Allen 339. Even if it be assumed that, in consequence of our laws in regard to the recording of deeds, Hamway might convey a title although he did not have one, he could not do so to a purchaser with notice. It appears that Depon was present when tender was made on October 15, 1923. He had notice of the facts which defeated Hamway's title. The oral extension of the mortgage, agreed upon between the mortgagee, Hamway, and the mortgagor, Shawye, was binding upon them and upon those who had notice of it, in the circumstances here disclosed. Stearns v. Hall, 9 Cush. 31, 36. Hastings v. Lovejoy, 140 Mass. 261. Conroy v. Toomay, 234 Mass. 384. Although the mortgage deed was a sealed instrument, and no new consideration for the extension appears, the report shows that the action of the mortgagor was affected by the assurance of extension and that tender of payment on October 15, 1923, was made in reliance upon it. The due date of the mortgage had become October. 15, 1923. The condition subsequent was satisfied. Jones on Mortgages (7th ed.) § 1191. Van Syckel v. O'Hearn, 5 Dick. 173. Albert v. Grosvenor Investment Co. Ltd. L. R. 3 Q. B. 123, 129. The mortgagee refused the tender then made; but, in law, since it was in fact made, was sufficient when made, and took place on the date fixed for performance of the condition, that tender had all the effect of payment in putting an end to the mortgagee's rights in the real estate. The mortgagee could not continue his title in force by a wrongful refusal to accept performance of the condition. See Schayer v. Commonwealth Loan Co. 163 Mass. 322. G. L. c. 232, § 12.

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The sections of the General Laws on which the plaintiff relies, relate to the duties, in regard to tender and suit, of one who, having failed to perform the condition of a mortgage, is seeking to assert rights of redemption. They have no application to one who has performed the condition, and is free from any occasion for redemption. There is no occasion to consider the questions of tender which would be presented if this were a bill to redeem from an outstanding mortgage. The original bill sought the discharge of clouds upon the plaintiff's title which create a false appearance upon the records of a mortgage existing after October 15, 1923, of an entry to foreclose, and of a foreclosure by sale after that date. The defendant, who once had held a mortgage on the land and while it was outstanding was justified in clouding the plaintiff's title, lost all right to hold the land as security for any sum due him or longer to cloud the title when he refused what was presented for his taking on October 15, 1923. He did not, however, cut himself off from all right to recover what was due him. The plaintiff did all that justice required when in the prayers of her bill she recognized an obligation to make payment. The decree secured to the defendants payment of what was due, and the original plaintiff makes no complaint. Whether Depon's action was fraudulent is immaterial. He took whatever he got with notice of Shawye's rights. The final decree is good in form and in substance.

The Superior Court was right in sustaining the demurrer and the entry must be

Order affirmed with costs.