314 Mass. 380 | Mass. | 1943
This is a bill in equity brought in the Land Court for authority to foreclose a mortgage of certain real estate in accordance with the power of sale contained therein. The defendant trustees (hereinafter referred to as the trustees) are the record owners of the equity of redemption.
The plaintiff alleges that it is about to exercise the power of sale, and does not know whether any person who would be adversely affected thereby is in the military service of the United States within the meaning and scope of the soldiers’ and sailors’ civil relief act of 1940, U. S. C. Title 50, § 532, and prays that an order issue authorizing the sale. The trustees answering do not expressly allege that they are in the military service, disclaim any knowledge with relation to whether any one interested in the equity of redemption is in that service, and allege that there are certain articles of personal property in the mortgaged premises that are not attached to the realty nor included in the mortgage, which were installed by the trustees after the date of the plaintiff’s mortgage and upon which the plaintiff has no hen under the mortgage, and that the plaintiff "since taking possession of said premises under its mortgage has refused to allow these defendants to remove said articles from the premises.” The answer of the trustees contains a prayer that "in any decree of foreclosure or other decree which may be entered herein it may be expressly provided and stipulated that the articles . . . Qn question] shall not be included in any foreclosure or foreclosure sale, and that the same are not subject to the lien of the plaintiff’s mortgage.” Lists of the articles, consisting of refrigerators, stoves and certain furniture, are contained in schedules annexed to the trustees’ answer.
On motion of the plaintiff the bill was taken as confessed against the defendant Mary E. MacDonough, the mortgagor of record, and Agnes C. Taff, individually, for failure to appear. The plaintiff filed a motion to strike out the answer of the trustees on the ground that it was not responsive to any issue presented by the bill of complaint, and the judge entered an interlocutory decree allowing the motion and
. In support of the interlocutory decree striking out the trustees’ answer, the plaintiff argues that St. 1941, c. 25, confers only the limited jurisdiction to determine whether any persons interested in the mortgaged premises are in the military service of the United States under the soldiers’ and sailors’ civil relief act of 1940, and not jurisdiction under the general principles of equity jurisprudence of the matters alleged in the trustees’ answer, and further, that even if the Land Court has general equity jurisdiction of the subject matter, nevertheless the allegations of the trustees’ answer are not within the scope of the bill and, therefore, do not fall within the principle set forth in Perry v. Pye, 215 Mass. 403, 413; Baker v. Langley, 247 Mass. 127, 132, that a court of equity having acquired jurisdiction for one purpose will retain it for any purpose within the scope of the bill.
The answer of the trustees sets up a counterclaim and, unless the jurisdiction of the Land Court is limited, as argued by the plaintiff, to the determination of the sole question whether "any persons interested are in the military service,” the counterclaim must be dealt with as such under Rule 6 of the Land Court (1935), incorporating by reference the rules of the Superior Court, to which reference will be made hereinafter.
Apart from the question whether ordinarily there is jurisdiction in equity in this Commonwealth to entertain suits for foreclosure of power of sale mortgages, it is fully settled that jurisdiction in equity does exist to entertain such suits
General Laws (Ter. Ed.) c. 185, § 1 (k) as amended by St. 1934, c. 67, confers jurisdiction upon the Land Court of “All cases and matters of equity cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, except suits in equity for specific performance of contracts.” Thus the Land Court is one of the equity courts of the Commonwealth with respect to the jurisdiction conferred by § 1 (k). Rule 6 of the Land Court provides that so far as practicable the rules of the Superior Court shall govern its procedure. Rule 32 of the Superior Court (1932) provides in part as follows: “The answer, without cross bill, must set up any counterclaim, against any one or more of the parties, arising
The trustees are described in the bill as the “Trustees of the One Hundred Beacon Street Trust under declaration of trust dated June 20, 1927, and recorded with Suffolk Deeds, Book 4912, page 509.” They appeared and answered in that capacity. They represent the interest of the shareholders whether their interests are legal or equitable, and it is the duty of the trustees to represent them and act in their interest. John Hancock Mutual Life Ins. Co. v. Lester, 234 Mass. 559, 562. The record does not disclose who the shareholders are or whether any of them are in the military service. Whoever they may be, the trustees, having been cited to show cause why the plaintiff’s bill should not be allowed, were entitled to be heard in behalf of the shareholders and to have determined the specific property which was subject to the power of sale contained in the mortgage. It is well settled that a court of equity, having “acquired jurisdiction of a subject-matter in controversy between
We do not concur in the contentions of the plaintiff that in this proceeding the only question presented under St. 1941, c. 25, is “whether any persons interested are in the military service of the United States, and, if so, what protection should be extended to them,” and “that the only answer contemplated by . . . [St. 1941, c. 25] is one predicated upon the fact that the defendants are entitled to the benefits of the soldiers’ and sailors’ civil relief act by reason of military service.” Statute 1941, c. 25, conferred no jurisdiction of the subject matter upon the courts of equity of the Commonwealth that they did not already possess by virtue of the special circumstance of the soldiers’ and sailors’ civil relief act of 1940. Statute 1941, c. 25, § 1, relates solely to forms of notice, to the recording of copies thereof, to the manner of service, and kindred matters in “any proceeding in equity, for authority to exercise a power of sale contained in a mortgage of real estate, brought because of an Act of Congress known as the Soldiers’ and Sailors’ Civil Relief Act of 1940, or any amendments thereto hereafter,” thus properly recognizing the existence of the jurisdiction in equity arising out of the special circumstance of the soldiers’ and sailors’ civil relief act. Statute 1941, c. 25, has nothing to do with the rules governing pleading and practice in courts of equity except as hereinbefore noted.
We are of opinion that the jurisdiction in equity of the subject matter is not one where the only question to be determined is whether someone interested is in fact in the mili
We conclude that as in other proceedings in equity, so here the defendants were entitled to be heard upon every issue touching the litigation, that the determination of what specific property was subject to the mortgage lien was an issue raised by the bill and one upon which the trustees were entitled to be fully heard on their answer by way of counterclaim.
It follows that the interlocutory decree allowing the motion to strike the trustees’ answer from the record must be reversed, and instead that an interlocutory decree must be entered denying the motion; that the final decree must be reversed, and the case remanded to the Land Court for further proceedings in accordance with this opinion. Costs of this appeal are to be allowed to the trustees.
Ordered accordingly.