274 Mass. 602 | Mass. | 1931
This is an appeal by the defendant from a final decree in favor of the plaintiff in a suit to set aside a mortgage and for other relief. The bill was filed September 1, 1926. The plaintiff alleged that he had no recollection of executing the mortgage or note, denied re
John O’Connell, father of the plaintiff, when he died in 1898, was the owner of four parcels of land in Canton which by his will he devised to the plaintiff upon condition that the latter would pay and assume all the testator’s indebtedness except a mortgage on specified property. The defendant drew the will and presented it for probate. On March 16, 1899, the plaintiff executed to Elizabeth M. B. Everett, mother of the defendant, a mortgage in the sum of $4,000 covering these several parcels of real estate to secure advances to be made to pay the debts and expenses referred to in the' will of the plaintiff’s father. This mortgage was duly recorded in March, 1899. We are bound by the finding of the master appointed in the case that the payments and advances secured by this mortgage amounted to $566.09. None of these appear to have been made after March, 1902. The mortgage was written to run for one year, but no payment was made thereon to the mortgagee or to the defendant up to the date of her death in 1902. Her will was proved and allowed in 1903. The defendant was entitled to the residue of her property. The inventory of her estate contained an item purporting to be “ mortgages and interest not in default,” but it contained no item of this overdue mortgage: The master was unable to find whether the defendant considered the mortgage to be part of the assets of her estate. The defendant’s contention was that the mortgage and note were assigned at the request of his mother to the defendant’s niece in 1926. No such assignment appears of record, but the master found that'the title to the mortgage is held as a part of the estate of this niece, having been assigned by the defendant as executor; he was unable to find that any note to be secured by it was given. He found that the mortgage was in the letter box of the defendant after the evidence was presented at a former hearing before a master, since deceased; and that no evidence was introduced to show how or when the mortgage was placed therein. The defendant sought to. prove that payments had been
The contention of the defendant that the Land Court had exclusive jurisdiction of the case by virtue of G. L. c. 185, § 1 (f) and G. L. c. 240, § 15, does not seem to have been made at the trial. In McMahan v. McMahan, 205 Mass. 99, 101, the court said that this statute “ gives no jurisdiction to determine the validity or invalidity of a disputed mortgage of long standing.” Mitchell v. Bickford, 192 Mass. 244. Lewis v. Crowell, 205 Mass. 497, 499. If the petition had been brought in the Land Court the evidence of payment offered by the defendant would1 have deprived it of jurisdiction to enter the decree for which the statute provides. The remedy thus provided does not exclude the general equity jurisdiction to establish the validity or invalidity of a mortgage on conflicting evidence.
Decree affirmed with costs.