
    DOLLY S. PARKS, PETITIONER.
    Worcester,
    December, 1902.
    
      Agreement to Assume Mortgage — Equity — Estoppel — Laches.
    
   Locus in this case is made up of two lots, shown by the Examiner on bis plan as “A” and “ B.” In 1867, one Gardner, the then owner of both lots, mortgaged them for the sum of $1,000 to one Wilson, and later in the same year, conveyed lot “A” to one Parks, subject to the mortgage, which was recited as covering both the Parks’ lot A ” and the adjoining lot “ B,” and which said Parks assumed as a part of the consideration for his deed. In 1874 Parks defaulted payment of the mortgage and surrendered possession for the purpose of foreclosure under G. S., Oh. 140, Sec. 2; the mortgagee also recording an evidence of possession by certificate of witnesses. About a week after the expiration of the time limited for redemption, .the mortgagee, for the consideration of $1,613.66, conveyed the mortgaged premises to a son of said Parks, who, on the same date and by an instrument recorded simultaneously with the deed to him, quitclaimed to Parks. The petitioner is residuary devisee under the will of said Parks.

The Examiner reports adversely on the title on the ground that the petitioner as claiming under Parks is estopped, by reason of his agreement to assume the mortgage, to assert a title by its foreclosure; and relies on Probstfield v. Czizek, 37 Minn. 420. This unpronounceable Minnesota case, however, was one in which the grantee of a deed made under similar circumstances was seeking the aid of the court to put him into possession, as against bis grantor, of tbe property wbieb be bad acquired by foreclosure proceedings made in violation of bis agreement. So in Massachusetts, one wbo is under an obligation to pay a mortgage will not be permitted to acquire tbe mortgage title and assert it against those toward whom, or for whose benefit, it was bis duty to pay it. An assignment to him will be held to operate as payment. Tucker v. Crowley, 127 Mass. 400. Thompson v. Heywood, 129 Mass. 401. And see Jager v. Vollinger, 174 Mass. 521.

But in tbe case at bar tbe petitioner is neither seeking to enforce tbe mortgage debt, nor to secure possession of tbe mortgaged premises. She is already in, and has been for over twenty years, claiming as a purchaser for value. Whatever the rights or relations between tbe parties arising under tbe agreement in. tbe Parks deed, lot “ B ” was always subject to tbe Wilson mortgage, and liable to foreclosure by the mortgagee. Foreclosure took place and tbe title passed. Whatever equities Gardner may have bad. by virtue of which a Court would, if seasonably invoked, have held Parks or bis devisee estopped from prosecuting any action under bis title so acquired, must be held at this late day to have been lost by laches. ■ For all that now appears tbe breach of agreement may have been actually satisfied or waived years ago. Such at least is a fair presumption. Tbe legal title cannot remain clouded indefinitely by what is at most a mere right to assert an equity.

Decree for Petitioner.  