293 Mass. 507 | Mass. | 1936
This is a bill in equity brought for an accounting, and to set aside a foreclosure sale, conducted by the defendant upon properties of the plaintiff, on the ground that it was illegal and void. The case was heard by a master together with a suit in equity in which the defendant in the present case, Irma Helen Bailen, is plaintiff and the plaintiff Barney D. Mann is defendant.
The master found that on August 1, 1924, the plaintiff executed and delivered to Ethel Hurwitz and Eva Rotman two promissory notes, each for the sum of $16,000; that these notes were to be secured by second mortgages on apartment house property numbered 1665 and 1669 on Commonwealth Avenue in Boston. On June 18, 1925, these two notes were transferred to the defendant. At that time there was a balance due on each note of $14,000. These apartment buildings had been erected by Barney Hurwitz and Morris Rotman, husbands of the payees of the notes. On each of these buildings Rotman and Hurwitz had placed a $50,000 first mortgage, and subject thereto they had conveyed the premises to the plaintiff, who had executed and delivered to Eva Rotman and Ethel Hurwitz the notes and second mortgages here in question. On October 1, 1928, in addition to interest there had been paid on the principal of each of these notes $9,800, leaving a balance due on each note of $6,200, making a total of $12,400 due on the mortgages. The notes were dated
Immediately following notices to the tenants rents were collected by one Murphy, who had theretofore acted in the same capacity for the plaintiff. He immediately turned them over to Rotman and Hurwitz who received the same' on account of the defendant. The master found that the rentals for the month of October were $1,207 less $55, or $1,152, and were for the same amount for the month of November. He made no finding as to the amount of the expenses for the months of October and November to be paid from any sum so collected.
The master further found as follows: On October 13, 20, and 27, 1928, the defendant published notice of a proposed foreclosure sale under the power contained in her mortgages, the date of such sale being November 5, 1928. On that day the defendant’s husband met the plaintiff and his attorney on the premises, the sum of $100 was paid by the plaintiff to cover the costs of foreclosure, and the sale by agreement was continued to November 13, 1928,
The master states that “Assuming the burden of proof to be upon the plaintiff to sustain the position that the foreclosure was in pursuance of a fraudulent conspiracy, I have taken into consideration the fact that no pecuniary
The plaintiff contended that there was no breach of the conditions of the mortgages when the foreclosure proceedings were instituted, and that there was evidence tending to show that by the conduct of the parties they recognized as the true construction of the notes that a payment made at any time within the calendar month would be a compliance with the terms of the notes. The master properly excluded the evidence on the ground that the language of the notes was plain and free from ambiguity.
The master states that, in writing and signing the letters to the tenants by Mr. Brooks, his authority to act on behalf of the defendant was not questioned; that the testimony of Mr. Bailen, the husband of the defendant, was that the earliest entry of the mortgagee for the purpose of foreclosing the mortgages or taking possession was on November 13, 1928; and that the collection of rents before that date was therefore not justified by any entry of the mortgagee.
The master also made the following findings: The taxes due on the property were approximately $2,800. There was no clause in the notes rendering the entire balance due upon failure to pay any monthly instalment. There was in the hands of the defendant at the time of the alleged foreclosure sale a sum more than sufficient to pay the instalments due upon the mortgage notes at that time, but there was not in her hands sufficient money to pay the taxes then
A motion to confirm the master’s report was allowed July 3, 1931, and on the same date an interlocutory decree confirming the report was entered, the exceptions of the defendant having been waived in open court. On April 25, 1934, an order was entered for a decree dismissing the bill with costs. On September 4, 1935, a final decree was entered dismissing the bill with costs in the sum of $17.50. From the order and the decree the plaintiff appealed.
Whether the present suit be construed as a bill to set aside the foreclosure sale, or a bill for an accounting as the result of an improper foreclosure of the mortgages on the properties, it is plain that it cannot be maintained in view of the findings of the master. It is manifest that there was a breach of the conditions of the mortgages in the failure of the plaintiff to pay the interest after October 1, 1928, and to pay the taxes due on the mortgaged properties. The bill alleges that the sale of the premises described in the mortgage was unlawful and illegal. The prayers for relief are that the sale of the property be declared illegal and void. The sole defendant named in the bill is Irma Helen Bailen, the mortgagee of the premises at the time of the foreclosure sale. It is a general rule, subject to some modification for convenience, that all parties having an interest in the subject matter of the bill must be joined as parties. Cassidy v. Shimmin, 122 Mass. 406. Morse v. International Trust Co. 259 Mass. 295, 300. Commonwealth Trust Co. of Pittsburgh v. Smith, 266 U. S. 152. The suit is brought against the mortgagee only although there were other necessary parties. All persons who have an interest in the subject matter of the suit who may be
The interlocutory decree confirming the master’s report, the exceptions of the defendant having been waived in open court, fails to show any error. The final decree dismissing the bill with costs in the sum of $17.50 is affirmed.
Ordered accordingly.