Houle v. Vallieres

281 Mass. 123 | Mass. | 1932

Lummus, J.

The plaintiffs held in unequal shares by assignment from Fideline Houle a first mortgage given by Louis Gauvin, a former owner, upon real estate owned by the defendant Vallieres. The defendant St. Anne’s Credit Union held, to the knowledge of the plaintiffs, a second mortgage upon the same premises. Desiring to make the first mortgage payable to the plaintiffs jointly, and to make the interest payable quarterly instead of semiannually, the plaintiffs and the defendant Vallieres, without consulting the defendant St. Anne’s Credit Union, caused the first mortgage to be discharged and a new note and mortgage from Vallieres to the plaintiffs to be given on February 9, 1929, for the same amount, in the mistaken belief that the new mortgage would have the same legal priority as the original first mortgage over the mortgage to the St. Anne’s Credit Union.

On September 10, 1930, the plaintiffs filed this bill for relief on the ground of mistake. It is not necessary to consider whether any relief could be given the plaintiffs without making Gauvin, the original mortgagor, a party. As early as July, 1930, the plaintiffs learned from their attorney that on the face of the record their mortgage dated February 9, 1929, was the junior mortgage. Instead of seeking to restore their original mortgage which had been discharged of record, they made an entry on July 18, 1930, for the purpose of foreclosing the mortgage of February 9, 1929, and still hold possession and collect rents under that entry. Furthermore, they brought suit on July 19, 1930, upon the note secured by the mortgage of February 9, 1929, and that suit is still pending. The plaintiffs thereby elected to rely upon the new mortgage, and the decree dismissing the bill was rightly entered. The case is governed by Childs v. Stoddard, 130 Mass. 110.

Decree affirmed with costs.