216 Mass. 405 | Mass. | 1914
In June, 1899, Caroline P. Gilham, William D. Park and Thomas C. Park, conveyed a tract of land in Boston, which they owned as tenants in common, to one Pihlcrantz, who gave a promissory note payable to the grantors, secured by a mortgage on the same real estate. The payees of the note have died, Thomas C. Park in 1904, William D. Park in 1908 and Caroline P. Gilham in 1910. In 1911 the note was paid to the executor of the will of Caroline P. Gilham and the mortgage was discharged. This is a bill in equity by him for instructions as to what shall be done with this money.
One of the several promisees of a negotiable instrument payable to two or more jointly may receive payment and cancel or surrender the note. Bruce v. Bonney, 12 Gray, 107, 111. Hence, the payment by the maker to the survivor of the joint payees was proper and discharged his obligation. In actions at law it has been held that although, since St. 1785, c. 62, § 4, (now R. L. c. 134, § 6,) conveyances to two or more persons are to be interpreted as creating estates in common, yet mortgages were excepted so that in a grant by mortgage to two or more persons to secure a joint debt, there is survivorship in the event of the death of one. Appleton v. Boyd, 7 Mass. 131. That was a case where the payees of the note and the mortgagees were partners, and this circumstance is adverted to as of importance in Lowell, appellant, 22 Pick. 215, 221, 222, and Earle v. Wood, 8 Cush. 430, 448. The same relation existed between the payees of the note in Goodwin v. Richardson, 11 Mass. 469: see also Norton v. Leonard, 12 Pick. 152, 157, Webster v. Vandeventer, 6 Gray, 428, and Hoag v. Hoag, 213 Mass. 50. Some of these cases were explained in Ewer v. Hobbs, 5 Met. 1, at 3, where it was said by Chief Justice Shaw:
“In an early case in Massachusetts, it was held by Chief Justice Parsons, that where a mortgage was made to partners, in such form as would ordinarily create a tenancy in common in other grantees —inasmuch as it was designed to secure a joint debt, which, in case of the decease of one partner, would vest in the survivor for the purpose of collection, and subject to the partnership debts — the estate should be held to be a joint tenancy, in order
In Gilson v. Gilson, 2 Allen, 115, at 117 it was said that these statutory provisions “have excepted mortgages from the broad provision that all conveyances made to two or more persons shall be construed to create estates in common and not in joint tenancy. But this provision only operates to leave open the inquiry in each particular case as to the character of the mortgage.” Donnels v. Edwards, 2 Pick. 617. The strong inference, if not the express decision, of Blake v. Sanborn, 8 Gray, 154, is that mortgagees, although joint tenants in form, are nevertheless, as between each other, bound to account according to the real nature of their respective rights. Boland v. McKowen, 189 Mass. 563, was an action at law discussed and decided on grounds arising out of a tenancy by the entirety.
This is a proceeding in equity and is governed by equitable principles. Joint tenancy and its doctrine of survivorship are not in harmony with the genius of our institutions, nor are they much favored in law. Burnett v. Pratt, 22 Pick. 556. It appears to be
In the case at bar the original payees of the note and grantees in the mortgage had been tenants in common of the real estate, and their shares were equal. The presumption is strong that they expected the note to stand in the place of the land they had sold, with like proportional interest in each. It is unlikely that as between themselves they intended that a relation so different and so speculatively uncertain in its nature as joint tenancy should be substituted for the plain and definite equal ownership of tenants in common. There is no evidence tending to show that purpose. In equity it is not to be imposed upon the parties in the absence of.anything to indicate that they understood that any such situation was being created. When the note, to which the mortgage was security, has been paid in full, and in a sense stands in place of the land of which the payees were tenants in common, there is no rigid rule of law which requires the principle of joint tenancy to apply to the money. The effect of Appleton v. Boyd, 7 Mass. 131, does not go to this extent.
It follows that the money in payment of the note received by the executor of the Gilham will must be accounted for by him to the other two payees of the note. This being so, the death of Thomas C. Park in California in 1904 did not divest his estate of an interest in the proceeds of the note.
Decree reversed.
The bill was filed in the Probate Court on February 28, 1912, and was heard by Grant, J., who made a decree “That all right, title, and interest of William D. Park in the Pihlcrantz mortgage and note ceased at the death of the said William D. Park, and that Caroline P. Gilham, the last surviving joint mortgagee, became the owner of the entire proceeds of said mortgage and. note at the death of the said William D. Park by right of survivorship; that: the respondents have no right, title, or interest in or to the said mortgage andl
Philip S. Parker, trustee under the will of William D. Park, appealed. The case was reserved by Braley, J., upon the bill and answer for determination by the full court.