288 Mass. 201 | Mass. | 1934
This is a writ of entry, in the form of a writ of original summons, issued out of the Land Court on May 20, 1933. The tenants pleaded nul disseisin, also filed a claim for betterments, and contended that they were holding the demanded premises under a title which they had reason to believe was good, that they had brought bills in
At the trial the uncontested evidence for the demandant was that one Fred A. Mathewson became the owner of the premises described in the writ, by deed, duly recorded, dated May 5, 1921; that said Mathewson conveyed the premises in mortgage by deed, duly recorded, dated January 14,1932, to Percy R. Coldwell; that Coldwell assigned said mortgage to the Hudson National Bank by an instrument, duly recorded, dated March 9,1932; that an entry to foreclose was made on February 11, 1933, and duly recorded on March 3, 1933; that the Hudson National Bank, by virtue of the power contained in said mortgage, foreclosed the mortgage by sale and conveyed the premises to John J. Plant by deed dated February 16, 1933, and duly recorded March 3, 1933; that said Plant conveyed the premises to Everett L. Paine,
The tenants introduced evidence to the effect that on January 26, 1932, they commenced dealing with the said Percy R. Coldwell for the purchase of the realty, title to which is involved in this case. Coldwell did not have title to the premises but did have a mortgage, dated January 14, 1932, to secure the payment of $3,000 in four months from the date of the deed. This is the mortgage assigned to the Hudson National Bank on March 9,1932, and is shown in the demandant’s chain of title above described. Coldwell did not represent himself in these dealings with the tenants as the owner of the premises, but said he probably would own the property under foreclosure when the mortgage came due because Mathewson would not carry out his agreement regarding the construction of a house on the premises. Cold-well advertised the premises for sale under the power in the Mathewson mortgage on June 3, 10, and .17, 1932, and con- " veyed them to himself by deed dated June 25,1932, and duly recorded on June 27, 1932. Oliver Gobin, one of the tenants in this action, was present at the sale and saw Cold-well bid the property in. The premises were those already assigned in March, 1932, to the Hudson National Bank.
The evidence for the tenants discloses that “Both Cold-well and Gobin believed at this time [that] title had been acquired to the premises by said Coldwell [under said sale] and in pursuance of which belief said Coldwell with his trucks, subsequently moved on to the premises goods and effects of Gobin, from his home in Shrewsbury, Mass.” The reported evidence, in substance, shows that the house on the premises at that time was not finished and contained no poultry houses; that the rest of the family, consisting of the other tenant (Gobin’s wife) and eleven children, moved on to the premises the latter part of August, 1932, and have remained ever since; that Coldwell delivered material on the premises and furnished workmen, to the amount of $965.76, which he charged to, but was never paid by, Gobin; that Gobin pulled down a barn, installed a septic tank, installed a tile drain from the house to the street, constructed a portion
The reported evidence further discloses that Coldwell put the tenants in possession in August, 1932, under an oral agreement whereby they were to pay $50 on taking possession and $50 a month thereafter, with the privilege of purchasing the premises. The tenants testified, in substance, that they went into possession under an oral agreement with Coldwell to finish said house, construct the hen coops, doing all necessary labor incidental to the same, and to purchase - the property at a price of $3,000 plus actual cost of finishing the house and constructing hen coops. What they put in toward finishing the house in the form of labor would be taken as a down payment on the purchase price, the balance to be paid by a savings bank first mortgage to be placed upon the premises, the proceeds going to Coldwell who was to take a second mortgage for the balance payable $1 per month on each $100 of the amount of said mortgage with interest at six per cent. Respecting this evidence the judge found that they “did not pay $50 or any sum on taking possession, nor have they paid any sum up to the present time. They did, however, improve the premises in some particulars and they also erected a large sized hen house thereon. They endeavored to arrange for a loan giving as security therefor a mortgage on the demanded premises, but were unable to do so, and the option to purchase contained in said oral agreement was never exercised.”
On the above facts the foreclosure sale and deed to Cold-well from himself to himself, purporting to be by virtue of the power in the mortgage of Mathewson to Coldwell, were a
Exceptions overruled.