59 Mass. 231 - Hale v. Rider — 59 Mass. 231

Warren Hale vs. Charles C. Rider. Same vs. Josephus Morton. The holder of a promissory note, secured by a mortgage of the real estate of the maker, is not obliged, as a condition precedent to maintaining an action thereon, to release his interest under the mortgage. These actions were brought by the plaintiff, as the holder, against the first-named defendant, as the maker, and the last-named defendant, as the indorser, of a promissory note. It was agreed, that the note was secured by a mortgage on the real estate of the maker, and that the plaintiff, who was the mortgagee, had not released, or offered to release, his interest under the same, as such security; and on this ground, the defendants contended, that the action could not be maintained either against the maker or the indorser of the note. The cases came to this court by appeal from the court of common pleas, and were submitted without argument. — By the Court. (majority) By the Court. The mortgage is wholly distinct from, and collateral to, the note, affording the creditor a separate and distinct remedy. If the mortgagee, after payment of the debt, refuses or neglects to discharge the mortgage, the mortgagor has a remedy by action. Rev. Sts. c. 59, § 34. But further, the defence presupposes, that the law will compel a creditor to release his collateral security as a condition precedent to obtaining judgment; when obtaining judgment is only one step, and that often a very remote one, towards obtaining satisfaction. To state such a proposition is sufficient to refute it. Judgment of the court of common pleas for the plaintiff affirmed.