Page:Federal Reporter, 1st Series, Volume 3.djvu/796

 HATDEN ». DEOBT. 789 �the extent of this mortgage, a purehaser of the mortgaged premises. Jones on Mortgages, § 710, (Ist Ed.) �In Pierre T. Faunce, 47 Me. 507, the court says : "A mort- gage is pro tanto a purchase, and the bona fide mortgagee is equally entitled to protection as the hona fide grantee. So the assignee of a mortgage without notice is on the same footing with a hona fide mortgagee in ail cases. The reliance of the purehaser is upon the record, and when that disclosea an iinimpeachable title he receiYes the protection of the la-w as against unknown and latent defects. In this case the defendant Drury seeks to avoid the effect of the assumption of the debt on the ground of mistake, and the case seems +.t me to stand on precisely the same ground that it woùld occupy if he had filed a bill in equity to reform the deed, upon the ground that the assumption clause was inserted in it by mis- take. And the rule is well settled that such a mistake can- not be rectified to the prejudice of an innocent purehaser for value. Story's Eq. Jur. § 165 ; Luckman v. Wood, 69 111. 329. And if Drury could not be allowed to reform the deed by direct proceedings for that purpose, as against. the bona fide holder of this mortgage and notes, who bas purchased {hem on the faith of this assumption appearing on the record, it is equally clear that he cannot be allowed to set up that defence in this cause. I therefore conclude that while, a? between Drury and Daggett, this clause of assumption^Was •wrongfuUy inserted, or at least imprqperly inserted in "the deed, yet such mistake cannot be set up .against the com- plainant, who has purchased these notes on the faith of Drury's apparent assumption of them, which then appeared of record ; and I also hold that the release deed made by Daggett to Drury from this assumption must be deemed inop- erative as against complainant, and the decree will be for the complainant against Drury for the amount of the mortgage debt. The case shows that there has been a reference to the master, and a report made on it, some time in November last, of the amount due, as stated by the master, and I give a Per- sonal judgment for the amount, and interest from tho date cf the master' s report. ����