Breed v. Gardner

187 Mass. 300 | Mass. | 1905

Knowlton, C. J.

We shall assume, in favor of the respondents, the correctness of the ruling that Brackett had a sufficient title to bring him within the R. L. c. 197, § 28, authorizing a person having an interest in property upon which a mechanic’s lien is claimed, to give a bond to dissolve the lien upon his interest. He held a conveyance of the equity of redemption, which purported to give him the estate, subject to mortgages. The mere fact that the conveyance was made to him with a view to his giving a bond to dissolve the lien does not affect his title. The owners were in the exercise of their legal right in making the conveyance, and he took the title with the incidents which legally pertained to it. Curtis v. Galvin, 1 Allen, 215. Hayes v. Fessenden, 106 Mass. 228. (Glendon Co. v. Townsend, 120 Mass. 346. Landers v. Adams, 165 Mass. 415. Of curse, upon a question whether the bond was given and the approval of it obtained and the record of it made fraudulently, such a conveyance might be very important evidence.

The signatures of the two sureties on the bond were, forgeries, and the question is whether the instrument has any legal effect. As against the sureties, it is void. It is, in law, like a bond without sureties. Such a bond does not comply with the requirement of the statute which calls for sureties, and has no effect to discharge the lien. It is even more plainly ineffectual to accomplish its intended object than the bonds which were held void because not signed by the principal, in Bean v. Parker, 17 Mass. 591, 604, and Wood v. Washburn, 2 Pick. 24.

The respondents contend that the signing by the sureties in the presence of the master in chancery, and their false answers in regard to their property, constituted an adoption by them of the names which they appended to the instrument, and that this false impersonation made the bond legal and binding upon them as sureties. This is a mistaken view of the contract. Whatever civil remedy might be had against them by a party injured, the bond was given and recorded and accepted as the bond of the persons whose names appeared upon it as principal and sureties. It was an instrument under seal, and the contract embodied in it was a contract in writing, which showed the parties to the instrument, as well as its other provisions. The contract did not grow out of the presence of the two sureties and their oral representations, but out of the instrument itself, which purported to bind the persons whose names appeared upon it as obligors. The signing as a false impersonation was not unlike ordinary-forgeries. Their further impersonation of the supposed sureties in the examination as to their property did not make the contract with them, as persons present under assumed names ; but it left the instrument to tell the story of the contract, and they pretended that it told the truth. The case differs materially from the cases cited by the respondents. See Edmunds v. Merchants’ Despatch Transportation Co. 135 Mass. 283; Bassett v. Daniels, 136 Mass. 547; Robertson v. Coleman, 141 Mass. 231. See also Bartlett v. Tucker, 104 Mass. 336; Grafton National Bank v. Wing, 172 Mass. 513. The instrument was not within the terms of the statute.

The respondents contend that the approval of the sureties by the master in chancery, under the statute, made the bond good; but his approval was only of the qualifications and fitness of the persons whose names appeared upon the instrument as sureties. It was no part of his duty to pass upon the question whether the signatures were forged or genuine. He was to inquire into the financial ability and the suitableness of the persons represented by the names appended to the instrument. His signature gave no validity to the forged bond.

It is not contended by the respondents that a title taken by a bona fide purchaser, in reliance upon a forged instrument recorded in the registry of deeds, is good if a valid instrument of that kind is needed to transfer the title from a former holder. In the present case Blanchard stands no better than did Bolster, from whom he took his deed. In each case the entry is to be,

Order affirmed.