Gaylord v. Pelland

169 Mass. 356 | Mass. | 1897

Allen, J.

If an instrument which requires a seal is by accident or mistake executed without one, a court of equity may grant relief by compelling a seal to be affixed, or otherwise. Bernard's Township v. Stebbins, 109 U. S. 341, 349. Bullock v. Whipp, 15 R. I. 195. Conover v. Brown, 4 Dick. 156. Lebanon Savings Bank v. Hollenbeck, 29 Minn. 322. Springfield Five Cents Savings Bank v. Springfield Congregational Society, 127 Mass. 516. Chase v. Peck, 21 N. Y. 581.

The evidence offered, therefore, was clearly competent, unless there was something in the circumstances of the case to deprive the plaintiff of a right to the relief prayed for. The defendants rely on two objections: 1st, that the plaintiff is barred by the former decree; and, 2dly, that after the execution of the mortgage a seal was placed thereon without the knowledge or consent of the mortgagor. But neither of these objections is decisive against the plaintiff.

, 1. The former decree did not touch the matter of the present suit. It declared that the instrument as executed was invalid and void as a mortgage for want of a seal, and therefore 'that the proceedings by which it had been sought to foreclose it were also void. The attempted foreclosure was therefore set aside. Springfield Five Cents Savings Bank v. Springfield Congregational Society, 127 Mass. 516. There was no adjudication upon the question whether the holder of the mortgage was entitled in equity to have it reformed, and the former decree is no bar to the present suit.

2. The decree in the former suit set forth that “the seal now upon said mortgage was placed thereon after its execution and delivery, and without the knowledge or consent of said Pelland,” who was the mortgagor. It was not then determined, and does not now appear, who placed it there, or under what circumstances it was so affixed. There is nothing in the bare fact that a seal was thus added which cuts off the plaintiff’s right to equitable relief. Cases have often arisen which presented questions of the effect of alterations of different kinds of written instruments under varying circumstances. Lee v. Butler, 167 Mass. 426. Church v. Fowle, 142 Mass. 12. Nickerson v. Swett, 135 Mass. 514. Holden v. Hoyt, 134 Mass. 181. Drum v. Drum, 133 Mass. 566. Greenfield Savings Bank v. Stowell, 123 Mass. 196. Ames v. Colburn, 11 Gray, 390. Adams v. Frye, 3 Met. 103. But as the circumstances of the alteration in the present case are as yet purely conjectural, we do not now consider how the plaintiff might be affected by possible facts. It is enough to say that upon the case as it stood the offered evidence was competent, and that according to the terms of the report the case should

Stand for further hearing.