255 Mass. 352 | Mass. | 1926
The material facts concerning the relation of the parties to the transactions as alleged in the bill as amended having been stated in Flynn v. Curtis & Pope
“This cause came on to be heard at this sitting of the court upon the substitute bill of complaint and the answers thereto, and the report of the master and the exceptions to the same, and upon the rescript of the Supreme Judicial Court, and thereupon after hearing of the parties, and upon consideration thereof, it is hereby ordered, adjudged and decreed:
“1. That the plaintiff’s exceptions to the master’s report be, and hereby are overruled.
“2. That the master’s report be, and hereby is confirmed.
“3. That the defendant Myer Rittenberg is a bona fide purchaser for value, without notice.
“4. That the bill of complaint be dismissed, as against the defendant, Myer Rittenberg, and the defendant Morris Finkelstein.
“5. That the defendant Curtis and Pope Lumber Company on October 15, 1919, held the property in question as equitable mortgagee of the plaintiff, to secure any indebtedness due to it from the plaintiff and Martin Flynn, her husband, including moneys expended in the completion of the garage and dwelling house.
“6. That the plaintiff is entitled to an accounting• from the Curtis and Pope Lumber Company for the difference between the fair value of the equity of redemption conveyed to the defendant Rittenberg on October 16, 1919, and the amount secured by said equitable mortgage, after making all proper charges and credits.
“7. That the case be recommitted to the master to take the account from the Curtis and Pope Lumber Company of the equity of redemption conveyed to the defendant Rittenberg on October 16, 1919, and the amount secured by said equitable mortgage after making all proper charges and credits.”
The case was recommitted accordingly and upon the coming in of the master’s report, to which the defendant
The defendant held in the name of its nominee a second' mortgage on the property which it caused to be foreclosed under circumstances which made it an equitable mortgagee. Flynn v. Curtis & Pope Lumber Co., supra. And when it became such mortgagee there was outstanding a construction mortgage for $30,000, which the company desired to replace by a permanent mortgage for a like amount. The defendant employed a broker to whom it paid a commission to negotiate a loan and through his efforts an agreement was made with the Boston Mutual Life Insurance Company whereby the defendant agreed to accept $25,000 in cash and $3,000 “in the form of equities in the three properties on Warwick Road, Newton,” which had come into the hands of the Boston Mutual Life Insurance Company as the result of foreclosure proceedings or otherwise, and also permitting the insurance company to retain $2,000 as security for the completion of buildings, which was to be paid to the defendant. A mortgage was placed on the property in accordance with these terms, and the defendant completed the work and received the amount. It sold the property on Warwick Road for $1,350:72, entailing a loss of $1,649.28, with which the master charged the defendant.
It is contended under the first and second exceptions that it should have been credited with, or allowed to set off the difference between $3,000, the amount advanced in lieu of cash, and the amount received for the sale. The master finds, that the defendant did not consult the plaintiff or her husband as to the condition attached to the placing of the permanent mortgage, nor did the defendant consult the plaintiff or her husband as to the employing of Brown, the
The third and fourth exceptions are to the disallowance of interest on all items representing the money paid or advanced by it from the dates of the respective payments to October 16, 1919, the date of the sale of the property by the defendant. And to the disallowance of its claim for interest on sums paid or advanced as set forth in the report between March 19, 1918, the date of the foreclosure sale under the defendant’s mortgage, and October 16, 1919, the date of the sale of the property by the defendant to Rittenberg. The foreclosure sale was March 19, 1918, and the defendant during the period referred to in the exceptions denied any relation of trust and confidence whatever with the plaintiff, refused to recognize her equitable rights, and claimed to be the sole owner. It must be presumed that the defendant knew the law, and having acted to the disadvantage of the plaintiff, compensation should not be awarded under the guise of interest. Morse v. Hill, 136 Mass. 60. Hayes v. Hall, 188 Mass. 510. Rolikatis v. Lovett, 213 Mass. 545. Flynn v. Curtis & Pope Lumber Co., supra.
The fifth exception is to the disallowance of the defendant’s claim for the care of the property, and for general supervision of the work performed on the premises between the date of the foreclosure under the defendant’s mortgage and the date of the sale to Rittenberg. As has been said, the defendant took possession March 19, 1918, the date when it acquired title under the foreclosure of its second mortgage. Until it sold the property to Rittenberg, it collected the rents and supervised the completion of repairs on the property. The claim
Of the remaining exceptions only the sixth, tenth and eleventh, which read as follows, have been argued.
“The defendant objects to the allowance by the master of the plaintiff’s claim for interest from October 16, 1919, on the amount found by him to be a fair market value of the premises in excess of the amount due the defendant.”
“The defendant objects to the finding of the master that interest should be added from October 16, 1919, on the sum of $13,972.22, the amount found due by the master.
“The defendant objects to the finding of the master that there is due from the defendant to the plaintiff interest on the sum of $13,972.22, the amount found due by the master, from October 16, 1919.”
It is contended, that under the circumstances shown by the record paragraph six of the interlocutory decree should be modified in so far as to permit consideration of the posi
The trial court having awarded costs to the plaintiff, the defendant contends that this was erroneous because no tender was made before bringing suit. But the plaintiff in her bill offers to pay the amount found to be due, and until the difference in value was ascertained by the master, under the express terms of the interlocutory decree, there was no fixed sum coming to the mortgagee on which a tender could rest. The cases of Mills v. Day, 206 Mass. 530, and O’Brien v. Hovey, 239 Mass. 37, are distinguishable, and costs were within the discretion of the court. G. L. c. 244, § 24. Dennett v. Norwood Housing Association, Inc. 241 Mass. 516, 521.
The decree is affirmed with costs of the appeal.
Ordered accordingly.