
    Welcome Farnum vs. John G. Metcalf & another.
    A mortgage, made by A. to B., was assigned by B. to C., to secure a debt, upon condition that if B. should pay the debt, the assignment should determine and become void, and the assigned premises should revest in B., his heirs and assigns. It was held, that a purchaser of both A.’s and B.’s interests in the premises might maintain a bill in equity against C. to redeem the mortgage, upon paying the amount due from B. to C.
    This was a bill in equity against the administrators of Charles C. P. Hastings, for the redemption of a mortgage, made by Esek Pitts to Moses Buffum on the first of August, 1834, to secure the payment of a promissory note for $5,000, and which mortgage, together with Buffum’s right, title, and interest in said note, and in the estate described in the mortgage, had been assigned by Buffum on the 6th of January, 1838, to Hastings, to secure the payment of a like sum of §5,000 advanced by Hastings to Buffum, and upon the express condition that if Buffum should pay said sum, then this assignment should cease, determine, and become absolutely void, and all the assigned premises should immediately revest in Buffum, his heirs and assigns. The defendants, on the 22d of December, 1849, entered upon the premises described in the mortgage from Pitts to Buffum, for a breach of the condition of said mortgage and to foreclose the same. The plaintiff had acquired the interest of Pitts and of Buffum in the mortgaged premises by the conveyances stated in the next preceding case of Pitts v. Farnum, (cunte, 43, 44.)
    The present case was argued and decided at the October term 1852.
    
      B. F. Thomas, for the plaintiff.
    
      E. Washburn, for the defendants.
   Metcalf, J.

It appears, from the bill, answer and facts agreed, that the plaintiff has acquired, through mesne conveyances, all the right of Pitts, the original mortgagor, to redeem the mortgaged premises. This being a legal, and not a merely equitable right, the court has jurisdiction of the cause. It further appears, that the plaintiff has also acquired all the right that Buffum originally had to fulfil the condition on which the transfer of the mortgage to Hastings, the defendants’ intestate, was to determine and become void, and the mortgaged premises revert to the mortgagee, his heirs or assigns. Whether this right of the plaintiff would alone have given the court jurisdiction, we need not inquire.

Having jurisdiction, the court will examine the whole case, and ascertain what is equitably due to the defendants, as Hastings’s representatives. And we are of opinion that they can claim only the debt due to Hastings’s estate, with the interest thereon. They are not liable to Buffum for any sum. On the contrary, the plaintiff, as before stated, has acquired all the equitable right that Buffum had to any surplus wnich Hastings might have received; and therefore if the defendants could claim and receive more than the amount due to Hastings, they would be bound, in equity, to hold the surplus for the plaintiff, and he might recover it back. Circuity of action is to be avoided by a decree that the plaintiff may redeem, on paying to the defendants the amount due to Hastings’s estate on Buffum’s note for five thousand dollars.

Decree accordingly.  