Farquhar v. O'Connell

264 Mass. 53 | Mass. | 1928

Sanderson, J.

The plaintiffs bring this bill to enjoin the foreclosure of a mortgage upon the plaintiffs’ real estate in Lincoln, held by the defendant. Dobbins, for cancellation of the mortgage upon the ground that it was procured by fraud, and for an accounting. They also seek the reconveyance from the defendant O’Connell of certain real estate in Boston.

The plaintiffs agreed to purchase of O’Connell real estate in Lexington, and he as their attorney undertook to procure for them a mortgage on their Lincoln property. O’Connell, who also had acted as attorney for and was indebted to the defendant Dobbins on two overdue notes, arranged with him to take a mortgage on the Lincoln property for $5,250. Dobbins surrendered to O’Connell the two notes and paid in cash the balance of the money secured by the mortgage. The amount for which the mortgage was given was credited to Farquhar by O’Connell on the purchase price, of the Lexington property in accordance with the agreement which the master found the plaintiffs had with O’Connell. The master also found that the mortgage on the Lincoln property, the note, and the deeds involved in the transaction were properly executed and were given pursuant to an agreement between David Farquhar and the defendant O’Connell. His finding that these documents were not signed in blank by the plaintiffs is conclusive on that issue. He found that Dobbins was the holder in due course of the mortgage note, having taken it in good faith for valuable consideration; that he held it for his own benefit and not for.that of O’Connell; and that he took the mortgage without knowing the relations between the plaintiffs and O’Connell except that he was informed that O’Connell was employed to procure a mortgage on the plaintiff’s real estate in Lincoln. Upon these findings there is no sound ground for the contention that the mortgage held by Dobbins is invalid or that the foreclosure should be restrained.

The master found that O’Connell and the plaintiffs agreed that the plaintiffs should pay O’Connell $12,750 for the Lexington property, part of which was represented by a first mortgage for $7,500 already on the property, the balance to be paid with the $5,250 derived from the mortgage on the Lincoln property. It seems that this transaction was consummated in accordance with the agreement. The plaintiffs are not entitled to any relief because of inaccurate ^recitals, found to be due to a clerical error.

The plaintiffs’ contention, that the conveyance of real estate in Boston from them to O’Connell was made without consideration and in violation of his duty to them, must fail because of the finding of fact, on conflicting evidence, that this property was conveyed to O’Connell for services rendered and to be rendered which were fairly worth its value, and that the charges of fraud in the transaction were not proved. The findings on all material issues are in favor of the defendants and the decree dismissing the bill must be affirmed with costs.

Ordered accordingly.