317 Mass. 341 | Mass. | 1944
This is an appeal by Sarah Bogas, hereinafter called the defendant, from a final decree entered in a suit brought under G. L. (Ter. Ed.) c. 214, § 3 (7), by a creditor of the defendant, to reach and apply certain property alleged to belong to her in satisfaction of the plaintiff’s claim. She also appealed from an interlocutory decree overruling a demurrér.
The bill alleged that the defendant Celia Baker in August, 1931, executed and delivered to her daughter, the defendant, a note for $7,000 secured by a second mortgage upon certain premises located in Everett, and that Baker in 1941 conveyed these premises subject to this mortgage to her granddaughter, the defendant Minnie Levine. The bill contained a special prayer that “the interest” of the defendant “in and to the mortgage” be reached and applied in payment of her indebtedness to the plaintiff. While the allegations of the bill might have been more specifically directed to the note, we think enough appears upon the face of the bill to bring the application of the note within the scope of the bill. The relief sought by the special prayer with reference to the application of the mortgage would not prevent the granting of relief under the general prayer by ordering the note to be applied in satisfaction of the plaintiff’s claim. Bleck v. East Boston Co. 302 Mass. 127. Manazir v. Dahood, 302 Mass. 290.
It appears from the transcript of the evidence that Baker executed and delivered to the defendant the note and mortgage above mentioned, that Baker conveyed the mortgaged premises to Levine, and that the plaintiff had not been paid anything upon the amount owed her, which was represented by a judgment which she had obtained against the defendant. There was evidence that the defendant had assigned this mortgage “and the note and claim secured thereby to my daughters, Rose Cohen, Minnie Levine and Ethel Bogas [afterwards Ethel KahnJ,” and that the assignment was never recorded. The defendant Levine, in answer
The grounds of appeal are that the bill does not lie to reach and apply a debtor’s interest in a mortgage on real estate, that the bill was not framed to reach and did not reach the note secured by this mortgage, and that the note could not be reached because the testimony shows that it was held by Levine as a holder in due course.
It is to be observed that neither the findings nor the final decree makes any mention of the note. It may be that the judge thought that the note was included in the word mortgage as he employed that term in the findings and the decree. We do not think, however, that the decree can be so construed. The mortgage was only an incident to the debt which it secured.' The debt was evidenced by the note. A
The ownership of the note was one of the principal issues in the case. The defendant contends that the answer of Levine to the plaintiff’s interrogatory that she had the note and assignment was conclusive upon the plaintiff because there was no evidence to contradict the answer. Vozella v. Boston & Maine Railroad, 296 Mass. 491. Hoosac Tunnel & Wilmington Railroad v. New England Power Co. 311 Mass. 667. The principle is inapplicable because there was evidence of the attorney already mentioned that the defendant turned over the assignment to him shortly before the trial. He testified in her behalf and produced the assignment at the trial. When asked at the trial if he asked the defendant “to procure the note back,” he stated that he told her to get the papers and she told him that the defendant Ethel Bogas Hahn had them. This was evidence that Hahn had the note. The evidence of this attorney goes far in answering the defendant’s contention that Levine was a holder of
The interlocutory decree is affirmed. The final decree must be modified by striking out the portion of the second paragraph that purports to grant relief by application of the mortgage alone to the payment of the defendant’s indebtedness, a remedy not open under a creditor’s bill. The plaintiff did not appeal. It is not open to her to ask for a decree more favorable to her. Kilkus v. Shakman, 254 Mass. 274. Waitt v. Harvey, 312 Mass. 384. But on the facts the plaintiff is entitled to relief by having the note and mortgage reached and applied in satisfaction of her claim. Leave is given to the Superior Court in its discretion to insert a new provision in the second paragraph of the final decree providing for the application of the note and the mortgage to payment of the amount owed to her by the defendant. Beacon Oil Co. v. Maniatis, 284 Mass. 574, 578. Royal Indemnity Co. v. Perry, 296 Mass. 149, 154.
So ordered.