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23 Mass. 489

Hunt v. Maynard

Massachusetts Supreme Judicial Court

Decided September 26, 1828

Massachusetts Supreme Judicial Court · decided 1828-09-26

<p>A mortgagee who has not taken possession of the mortgaged property, and become accountable for rents and profits, is not a trustee for the mortgager.</p> <p>Therefore, this Court, under St. 1817, c. 87, which gives it authority “ to hear and determine in equity, all cases of trust arising under deeds,” has no jurisdiction of a bill in equity brought by the assignee of the mortgager, in order to obtain an injunction against the mortgagee’s proceeding at law to recover possession of the mortgaged property, and to have the mortgage deed cancelled.</p> <p>It seems that a court of equity would not prevent a mortgagee from proceeding at law to recover possession of the mortgaged property, on the ground of a paroi agreement made by him with the assignee of the mortgager, that the assignee should hold die land discharged from the mortgage.</p>

Decided 1828-09-26

¶1The opinion of the Court was drawn up by

Parker C. J.

¶2Has the Court jurisdiction of this case by virtue of the statute of 1817 ? It has not, unless the mortgage deed created a trust within the meaning of that statute *494But a mortgage deed does not per se create a trust; it conveys the estate subject to a condition. The mortgagee is not accountable to any one until he enters and takes possession and receives the rents and profits ; in which case he may in some sense be considered as trustee, for he is to ■render an account j 1 but this must be done in the manner and for the purposes provided in the several statutes for redeeming mortgages, and he is not trustee in any other light.2

¶3The object of this bill would seem to be, to devest the mortgagee’s estate by paroi evidence of a promise founded on no legal consideration. If here were written evidence, the want of consideration would be fatal to the claim. And without such evidence, it would be unhinging our whole system of titles in real estate, to defeat the operation of a legal instrument under seal, in this way. We are called on to enjoin against the use of a mortgage deed, by verbal proof that the respondent had given up his estate. The proposition is self-evidently false. 1

¶4‘ If the plaintiff has any case upon his representation, it is one of fraud, of which no jurisdiction has been given to this Court, unless it incidentally arises in cases where we have jurisdiction.

¶5We are clear that the demurrer to the bill must prevail, and that the bill must be dismissed with costs.

¶6 See Revised Stat. c. 107, § 9.

¶7 See 2 Story’s Comm. Eq 278, 283; Cholmondeley v. Clinton, 2 Jac. & Walk. 1,182 el seq.; Revised Stat. c. 81, § 8.

¶8 See Maynard v. Hunt, 5 Pick. 243.
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