221 Mass. 228 | Mass. | 1915
This is a bill in equity to enjoin the foreclosure of a mortgage. The case is here on a report.* From the report it appears that on March 4, 1902, a mortgage was executed by James Walker on a lot of land on Rutland Square in Boston on which the Hotel Exeter was erected. The mortgagees were Adeline W. Griswold, William E. Stowe and Henry L. Morse, (trustees of the estate of William F. Homer,) and Mary D. Stowe. The mortgage secured three notes signed by the grantor, one to Mrs. Griswold for $5,800, a second to Stowe and Morse (trustees as aforesaid) for $2,500, and a third to Mrs. Stowe for $1,500. James Walker was a man of straw. The real owner of the mortgaged property at that time was William E. Stowe. William. E. Stowe acquired title in the name of Walker to the land on which the Exeter was erected (hereinafter spoken of as parcel A) and to a small lot adjoining it (hereinafter called parcel B) by a deed from Thomas G. Washburn dated March 1, 1902, and recorded March 3, 1902. The mortgage here in question was dated March 4,1902, and recorded March 6,1902. At this time Stowe was acting as attorney for Mrs. Griswold and for Mrs. Stowe. At the time of the trial Stowe was dead and Washburn (who testified as a witness) did not have a clear recollection of the transaction.
It would seem from the facts stated in the report that Stowe acquired title to lots A and B (which he had put in the name of Walker) by a conveyance of two parcels of land, one on Ward Street in Newton and the other on Irvington Street in Waban. The land on Ward Street in Newton was owned by Mrs. Stowe and by William E. Stowe and Morse (trustees as aforesaid) in the proportions of $1,500 and $2,500. Just what interest Mrs. Gris-wold had in the Waban property is not very clear, but the judge found “that William E. Stowe, acting for Adeline W. Griswold,
On June 14, 1905, Washburn, “in ignorance of the existence of the mortgage in suit,” paid to Whipple the second mortgage note originally made by him, and thereupon that mortgage was discharged and released and the discharge and release were recorded on July 19, 1905. Later, $5,000 of the $20,000 secured by the first mortgage was paid by “some one or more of the plaintiff’s predecessors in title.” Since the deed from Walker to Wash-burn there have been five transfers and four mortgages of parcels
The bill of complaint alleges that the defendants Adeline W. Griswold (one of the original mortgagees), Griswold Stowe (now trustee under the will of William F. Homer), and Ellen G. Stowe (executrix of the will of Mary D. Stowe) have advertised parcel A for sale under the power of sale contained in the mortgage given by Walker to Mrs. Griswold and to Stowe and Morse, trustees, and to Mrs. Stowe, to secure the several sums of $5,800, $2,500 and $1,500. In consequence of the institution of these foreclosure proceedings the bill of complaint here in question was filed.
The first ground on which the plaintiff contends that he is entitled to have the foreclosure proceedings enjoined is that the so called mortgage which the defendants are attempting to foreclose never was intended as a mortgage, but was an instrument put on record to hide Stowe’s ownership of the property. But the judge found that this instrument “was what it purported to be and was intended by William E. Stowe individually and as agent and trustee, and by James Walker, to be a mortgage securing definite süms, namely, the interests of the respective persons for whom he acted, as stated in the mortgage.” We are of opinion that this finding was justified by the evidence set forth in the report and not only that, but on that evidence that it was correct. That disposes of the first contention.
The second contention of the plaintiff is that there was no evidence of delivery of the mortgage deed. This contention is based on the finding that “it did not appear that any of the mortgagees other than William E. Stowe knew at the time of the transaction or thereafter that said Stowe had taken such a mortgage on their behalf until Mr. Norcross, attorney for Mrs. Griswold, learned of the existence of the same.” But under the findings of the judge, Stowe, as attorney for Mrs. Griswold and for Mrs; Stowe, had authority to accept the mortgage so far as they were concerned, and as trustee under the will of William F. Homer he had authority to accept it so far as he and his fellow trustee Morse were concerned. Under these circumstances there is nothing in the cases of Barnes v. Barnes, 161 Mass. 381, Meigs v. Dexter, 172 Mass. 217, Loring v. Hildreth, 170 Mass. 328, Gilson v.
The next contention of the plaintiff is that the defendants are estopped from asserting their rights under the mortgage because of the misrepresentation made by Stowe when Washburn, their predecessor in title, accepted a reconveyance from Stowe in place of foreclosing the Whipple mortgage. But it was found by the judge that “on the occasion when he [Washburn] sold the property to Stowe in 1902 title being taken in Walker’s name and when he received the title back in 1904 he thought that he was dealing with William E. Stowe as an individual,” and further, “that Washburn dealt solely with Stowe in procuring this deed” in place of foreclosing the Whipple mortgage. The representation therefore was made by Stowe in his own behalf, not in behalf of himself as trustee under the will of Mr. Homer, or in behalf of the 'two individual mortgagees Mrs. Griswold and Mrs. Stowe. In that respect the case is different from Nickerson v. Massachusetts Title Ins. Co. 178 Mass. 308, relied upon by the plaintiff.
It follows from what has been said that the plaintiff is not entitled to have the defendants enjoined from proceeding with the foreclosure sale which they have begun.
In, addition to the prayer for an injunction restraining the foreclosure sale, the plaintiff inserted in his bill of complaint the following prayer: “That it be decreed that the mortgage formerly held by said Whipple and which was discharged by reason of the representations of said William E. Stowe and the said James Walker as aforesaid, be revived in favor of the said plaintiff to take precedence over the mortgage now held by the said defendants.” The plaintiff’s contention on this prayer for relief is that under the circumstances under which it was executed the release of the Whipple mortgage will be treated in equity as an assignment and not as a release. If that be so, and if it be true that the plaintiff has succeeded to Washburn’s right to have the release of the Whipple mortgage stand as an assignment of it, the plaintiff’s remedy is to foreclose that mortgage as the assignee of it. Whether he has a right to foreclose that mortgage as the assignee of it is not in issue in this suit. What the plaintiff (by the additional prayer set forth above) in effect asks the court to do is to enter a
Whether a bill can be framed on which some relief can be given to the plaintiff in respect to the Whipple mortgage is not a matter now before the court. So far as the present bill relates to the Whipple mortgage it should be dismissed without prejudice, and so far as the rest of the bill is concerned it must be dismissed on the merits. It is
So ordered.