241 Mass. 196 | Mass. | 1922
In this action the plaintiff seeks to recover damages in tort or contract for the alleged wrongful discharge of a
At the trial the defendant offered the record in the equity suit of Hayden against the Hannafords to contradict the plaintiff and her witnesses, to show the amount of damages and to show that the mortgage in question, given to the plaintiff, was not a valid mortgage. The judge admitted the record for the purpose of contradicting statements made as to the amount of Hayden’s debt, and
The wrong of which the plaintiff complains is the discharge of a mortgage, which has been set aside as of no value in a proceeding to which she and all other parties to the mortgage were parties. By reason of the decree in that case the mortgage was fraudulent and voidable as against existing creditors of the grantor. See Rolfe v. Clarke, 224 Mass. 407, 411, and there is no possibility of reviving it or giving it any value whatever and even if the defendant assigned the mortgage instead of discharging it the plaintiff at no time could receive anything from it.
While it is a general rule that a judgment is not evidence in another suit except where the parties are the same or their privies are litigating in regard to the same subject of controversy, Burlen v. Shannon, 3 Gray, 387, and although the doctrine of res judicata does not apply, Old Dominion Copper & Smelting Co. v. Bigelow, 203 Mass. 159, 217, and the equity suit was not strictly a proceeding in rem (see Allred v. Smith, 135 N. C. 443) the fact remains that the instrument was worthless and the best evidence of this was the decree of the court declaring it to be of no effect. The record shows that after the first mortgage was foreclosed, the surplus remaining was entirely exhausted by the payment of Hayden’s claim. In these circumstances it is plain that the defendant has done nothing which in any way injured the plaintiff and it would be an injustice to deny the defendant the right to show the true value of the mortgage deed and to introduce in evidence the record in the suit of Hayden «. Hannaford et al. in order to show that the mortgage now relied on as valid was declared to be of no effect and -unenforceable. The decree in the equity suit binds the plaintiff. It declared that she had no title under the mortgage; that it was fraudulent; and it is not now open to her to
Exceptions sustained.