Eaton v. Newhall

157 Mass. 309 | Mass. | 1892

Morton, J.

The answers of the trustees would have been more regular if they had set out the facts of the mortgages and the amounts which were claimed to be due upon them. Martin v. Bayley, 1 Allen, 381. Hayward v. George, 13 Allen, 66. Goulding v. Hair, 133 Mass. 78. Instead of that, the trustees answered, “ No funds,” which was in effect submitting themselves to examination touching the validity of their mortgages and the amounts due upon them, and so the plaintiff seems to have understood it. Goulding v. Hair, ubi supra; Simmons v. Woods, 144 Mass. 385, 389. Emery v. Seavey, 148 Mass. 566. He interrogated them, and they answered under oath, and the questions and answers form' a part of the bill of exceptions. There is nothing in the answers tending to show that the mortgages were not valid. On the contrary, Frank H. Howe, one of the alleged trustees, answered that he took a mortgage on a piano from the principal defendant for seventy-five dollars lent her at the time, which he had never been repaid, and for which she was still indebted to him. Sarah F. Heald, the other trustee, answered that she had a mortgage on a piano given to her by the principal defendant, to secure a note given to her, by the principal defendant. She did not state how much was due on the mortgage, and the interrogatories did not call for it. If we assume that the plaintiff could contradict the answers of the alleged trustees, then, taking all the testimony in the case, the findings of the court were justified by it, although a portion of the evidence of the principal defendant may have tended to show that the mortgages were paid by a surrender of the piano. If the plaintiff could not contradict the answers of the trustees, then there was nothing to impair the validity of the mortgages. The answer of Howe stated how much was due him on his mortgage.

It was competent for the court to find, from the principal defendant’s testimony as to the consideration of the mortgage, the amount due on it to Sarah F. Heald. Her testimony on that point tended to sustain, and not to contradict, the answers of the trustees, by showing that there was a valid mortgage, and related to a matter on which the trustees had not been interrogated and had made no statement. - Pub. Sts. c. 183, § 17.

JEicceptions overruled.