180 Mass. 444 | Mass. | 1902
This is an action to recover damages for the breach of an alleged contract to lend the plaintiff money on the security of a mortgage of real estate. In the St. 1894, c. 317, § 21, cl. 1, is the following provision in regard to investments of savings banks: “ No loan on mortgage shall be made except upon the report of not less than two members of the board of
In the case before us it appears that the only report made upon the loan in question was by a single member of the boaz-d of investment. The report called for in the statute is a report in writing which is to be filed and preserved with the records of the corporation, and this report is to include a certificate o.f value. For the reason that there was no such report as the statute calls for, there was not only no loan to the plaintiff, but no binding contract to make a loan.
On an examination of the plaintiff’s title to the property to be mortgaged, the defendant’s solicitor found such supposed incumbrances as induced him to report to the defendant that the title was not satisfactory, and for that reason the defendant declined to proceed further with the business. If the application had contained no express statement on this subject, there would have been an implied agreement that the plaintiff’s mortgage should convey a perfect title. If the defendant had contracted to make
But the application signed by the plaintiff in this case contained this language: “that the title to the above mentioned real estate is to be examined and the papers prepared by one of the solicitors of the bank; and that such title will not be considered satisfactory, if the estate is held subject to any conditions or restrictions. The expense of examining the title, whether finally accepted or rejected, is to be borne by the undersigned, etc.” Here is a plain implication that the title must be satisfactory to the solicitor of the bank, and that it may be accepted or rejected by him, according to his opinion in regard to its validity. We think the reasonable interpretation of this language, in the connection in which it is used, is that the title must be such as the solicitor of the bank, acting in good faith in the exercise of his judgment, deems good. By way of special explanation it is said that it will not be considered satisfactory if the estate is held subject to any conditions -or restrictions. In view of the purpose of the application and the relations of the parties, it would not be reasonable to suppose that the bank was to accept the title and make the loan, if, in the opinion of its solicitor, there were such defects or uncertainties in it as would expose the holder to a risk of loss from an outside claimant. In this case the record shows an outstanding tax title whose validity could not be determined without resorting to oral testimony. Furthermore, the release of a mortgage incumbrance was by a deed which purported to be executed by an attorney of the mortgagee, while there was nothing to show that any power of attorney had been acknowledged and recorded as required by the Pub. Sts. c. 120, § 14. Gen. Sts. c. 89, § 29. We consider the solicitor’s report that the title was not satisfactory for the reasons shown by the record, a sufficient justification of the defendant’s refusal to make the loan.
Judgment affirmed.