152 Mass. 391 | Mass. | 1890
Benjamin G. Boardman, senior, at his death in March, 1858, left a widow, Sarah W. Boardman, and as his sole heirs at law four sons, Charles W., Edward A., Moses B., and Benjamin Gr. Boardman, junior, all of whom had deceased before the bill was filed. The plaintiffs, who seek to redeem the land in question, claimed under the three sons first named; and the defendants, who oppose such redemption are the administrator of Benjamin G. Boardman, junior, and Bernard A. Doherty and James J. Doherty. By his will, Benjamin G. Boardman, senior,
The rule that, when tenants in common are actually in possession, or are entitled to immediate possession, a purchase of an incumbrance on the common property will generally be deemed to have been made for the benefit of all, if they shall consent to pay their proportional shares thereof, and that to this extent a certain fiduciary relation exists between the tenants in common, is one that is sustained by many authorities. Van Horne v. Fonda, 5 Johns. Ch. 388. Flagg v. Mann, 2 Sumner, 486. 4 Kent, Com. (13th ed.) 371, and cases cited. 1 Washb. Real Prop. (5th ed.) 430, and cases cited. Hurley v. Hurley, 148 Mass. 444. It is the contention of the defendant administrator and of the Dohertys, that the rule has here no application, and that those who are only entitled together to an estate in reversion, having no unity of possession, are not within the reason of the rule. We shall not have occasion to consider this question, in view of the relation in which Benjamin G. Boardman, junior, stood to his co-heirs, and to the property in the reversion, to which he was entitled with them by reason of his purchase and ownership of the estate for life when he undertook to complete, and so far as the record is concerned did complete, the foreclosure of the equity of redemption of the mortgage on the premises. While he did not record the conveyance to him by Sarah W. Boardman until April, 1877, it will be observed by the dates heretofore stated that it was some months from the purchase of the life estate included in the conveyance to him of April, 1876, before the three years elapsed after the date of the formal entry by the original mortgagee. He was thus one of the coreversioners, and the sole owner of the life estate. By seeking to avail himself of the entry made by the original mortgagee to complete the foreclosure of the mortgage, he sought both to destroy the rights of his co-reversioners and the life tenancy which he had acquired by the conveyance of his mother, Sarah W. Boardman.
It is not necessarily the duty of the life tenant to pay off the
Nor can we perceive that the plaintiffs have lost any rights to redeem their proportions of the estate from the mortgage which Benjamin G. Boardman, junior, attempted to foreclose by any laches or lapse of tipie. Sarah W. Boardman, the original owner of the life estate, did not die until March 21,1884, and the fact of her death was not communicated to the plaintiffs until some time after. It is found by the master that the co-reversioners of Benjamin G. Boardman, junior, had no actual knowledge until after his death, in 1887, of the breach of the conditions of the mortgage, the entry to foreclose, and the assignment, and until shortly before the bringing of these suits; and that they have been guilty of no laches. This finding is not affected by the fact that there was a record of the entry and of the assignment. They had a right to suppose, as the tenant for life was entitled to possession, they would be called upon and notified if any attempt was made to oust such tenant by which their rights would be affected. As between Benjamin G. Boardman, junior, or his representative, by whom with the Dohertys the suits are now defended, and the plaintiffs, the plaintiffs would be entitled to redeem on payment of their proportion as co-reversioners in the mortgage; and it is found
There remains the question as to the remedy to which the plaintiffs are entitled. This is deemed by them as of slight practical importance, as, if the title of the Dohertys is held to be good, relief may be afforded them by allowing them to maintain the bills for their share of the proceeds of the sale of the premises for the sum of $16,000, a mortgage for $15,000 of which remains in the hands of the defendant administrator. Nor can the defendants, if the plaintiffs are entitled, as against the estate of Benjamin G. Boardman, junior, to a remedy, object to this. If it shall be found, as the defendants urge, that the prayers of the bills are not adapted to this remedy, and it shall be so considered when the final decree is to be framed, there can be no reason why the plaintiffs should not be permitted to amend on proper terms. To the Dohertys, who are conceded to have purchased in good faith, and for full and valuable consideration, with no knowledge except such as they may be properly charged with, and as could be derived from inspection of the records of the registry of deeds or of the registry of probate, it may make a serious difference whether the remedy of the plaintiffs shall be upon the estate now in their possession, or through the mortgage they have given for the payment of the purchase money. As the plaintiffs are satisfied with the relief afforded in the latter method, and as the rights of purchasers in good faith are thus protected, the decree may be so framed.
Decree for the plaintiffs.