Phillips v. Vorenberg, 259 Mass. 46

Phillips v. Vorenberg

259 Mass. 46 | Mass. | 1927

Braley, J.

On January 28, 1904, the defendant borrowed of the plaintiff $70,000 for which he gave his promissory note, payable in three years from date with interest at three and three quarters per cent semi-annually, secured by a mortgage with power of sale, upon default, on his real property with buildings thereon numbered 151-157 Court Street in the city of Boston. The jury could have found that the conditions of the mortgage were broken; that foreclosure followed on March 26, 1920; that a deed under the power was duly executed and delivered to the purchaser; and that the affidavit required by G. L. c. 244, § 15, was seasonably executed and recorded. It also could have been found that the purchase price of $46,000, after deducting the foreclosure expenses, was insufficient to satisfy the mortgage, and the present action is brought to recover an alleged deficiency of $26,337.12 with interest.

The first ground of defence is, that the action is barred by G. L. c. 260, § 2, because not brought within six years after the cause of action accrued. It is, however, provided by G. L. c. 260, § 1, cl. 3, that if a promissory note is signed in the presence of an attesting witness an action may be maintained by the original payee if brought within twenty *68years from the date of maturity. The note in question purports on its face to be signed by the defendant as maker, with the word “Witness” in print, and the words underneath “Geo. A. Sawyer” appearing at the left of the defendant’s signature. While the defendant denied the genuineness of these signatures, and required their proof at the trial, (G. L. c. 231, § 29,) there was plenary evidence that the respective signatures were genuine. “In order to constitute an attestation of a note, within the statute, the witness must put his name to it openly, and under circumstances which reasonably indicate, that his signature is with the knowledge of the promisor, and is a part of the same transaction with the making of the note.” Drury v. Vannevar, 1 Cush. 276, 277. The question of what is competent evidence to establish this fact was considered in Tompson v. Fisher, 123 Mass. 559, 560, where the person whose name purported to be upon the note as an attesting witness testified at the trial, that “the name looked like his handwriting, that he thought it was; that he could not tell under what circumstances it was put there; that he had no recollection whatever about it; that, if he signed it, he must have seen the defendant sign.” It was held that, although the burden of proof was on the plaintiff, there was some proof of the due attestation of the note. It appears in the case at bar that Mr. Sawyer had died prior to the trial. But there was evidence that he drafted the mortgage which was executed by the defendant to whose signature his name appears as a witness, and he also as a justice of the peace took the defendant’s acknowledgment that the mortgage was his free act and deed. It also could be found, that all these signatures, purporting to be his, were in his handwriting, and that the note and mortgage were contemporaneous. We are therefore of opinion that under all the circumstances this question was for the jury to whom it was submitted under instructions which did not as the defendant contends violate G. L. c. 231, § 81. The error of permitting the plaintiff to introduce evidence as to the practice or custom of Sawyer, a conveyancer of much experience, “to witness instruments which he prepared,” if it be an error, (see Mumford v. Coghlin, 249 *69Mass. 184, 188,) caused no injustice to the defendant. Adams v. Dick, 226 Mass. 46, 57. G. L. c. 231, § 132.

The interest during the period from January 28, 1904, to July 28,1912, was paid by the defendant either at the rate stated in the note or at an increased rate agreed upon by the parties. The defendant while the owner of the equity of redemption had the mortgage extended in 1907 at four and one quarter per cent and it was again extended on July 28, 1910, at the rate of four per cent, and until further changed by agreement, this rate was the rate payable by the defendant. The instructions to the jury on the question of interest if the plaintiff recovered were correct. The defendant however on August 10, 1912, conveyed the equity to Fred L. Hewitt subject to the mortgage, existing leases, restrictions, and taxes assessed for the current year. But the deed did not contain a clause that the grantee assumed and agreed to pay the mortgage, and this transaction did not of itself discharge the defendant. Codman v. Deland, 231 Mass. 344. The deed not only was recorded, but the plaintiff had actual notice of the change in title as well as the subsequent conveyance on August 27, 1915, from Hewitt to George F. Williams, who was the owner at the date of the foreclosure and who acquired title under the same conditions as stated in the deed to Hewitt. There was evidence that the interest paid by Hewitt was at the rate of four per cent from July 28, 1912, to July 28, 1913, and four and one half per cent from July 28, 1913, to August 28, 1915, and that after the conveyance to Williams, the rate was reduced to four per cent from August 28, 1915, to August 28, 1918. The interest thereafter paid by Williams was at the rate of five and one half per cent from August 28, 1918, to August 28, 1919. The plaintiff by his agent wrote the defendant August 12, 1914, when Hewitt owned the equity, that the taxes for 1913 were unpaid and the interest on the mortgage was in arrears and that foreclosure proceedings would be begun. The defendant replied in a telephone conversation that “the mortgage is good.” “If the mortgage is good, that is the end of it.” But no attempt to foreclose followed. The defendant at the date of the conveyance to Hewitt was the *70promisor. If he became a surety with the land as principal, the transformation must have been wrought after he parted with his title to the equity. While an agreement for extension need not be in writing, Brooks v. Wright, 13 Allen, 72, 76, the deed to Hewitt as previously said conveyed the land by express terms subject to the mortgage, and the grantee did not thereby assume and agree to pay the debt, and he did not assume it by implication. Fiske v. Tolman, 124 Mass. 254, Rice v. Sanders, 152 Mass. 108. The defendant under the sixth paragraph of his answer introduced evidence to show a valid and binding agreement between Hewitt and the plaintiff, whereby the mortgage was extended, and consequently the defendant became discharged as a surety, leaving the mortgagee to look to the land alone for payment of the debt. North End Savings Bank v. Snow, 197 Mass. 339. See Codman v. Deland, supra, page 347. The burden of proof was on the defendant to establish the extension. Haydenville Savings Bank v. Parsons, 138 Mass. 53. The only evidence consisted of an entry on an envelope in which the mortgage and note were kept. It reads as follows: “Renewed for three years from July 28, 1913 at 4j/£%,” and the testimony of Hewitt, “I had one, probably more than one conversation with . . . [the plaintiff’s agent] and arranged for, I won’t say an extension, I don’t recall whether exactly an extension, but I arranged for the mortgage then existing on the property should be allowed to remain but as a part thereof I was required to increase the rate of interest by one half percent, that is, from four to four and one half per cent. I cannot tell from memory whether the length of time it was allowed to remain was one year or three years or five. I should say a definite period was arranged on but I can’t say whether one, three, or five, or two and one half, or any other definite time. After the talk ... I paid the changed rate of interest . . . .” It was for the jury, under suitable instructions which were given, to decide on the evidence, all of which was admissible, notwithstanding the defendant’s exceptions, whether there was an agreement for extension, or whether it was only an arrangement that an overdue mortgage might continue to subsist without re*71linquishing the right of foreclosure if any of the other conditions were unperformed. Lewis v. Blume, 226 Mass. 505.

The offer of the defendant to prove that after the arrangement, no request was made on him by the plaintiff for payment of the mortgage, was properly excluded. The silence of the plaintiff could not enlarge nor diminish the scope of the alleged agreement.

The agreement of the mortgagee with Williams for “renewal” of the mortgage for three years from August 28,

1918, with interest payable at five and one half per cent is apparently recognized by the plaintiff as binding.

It however appears on the face of the note that it is secured by a mortgage of real estate duly recorded, and by the mortgage deed the defendant among other conditions covenanted and agreed to pay all taxes at any time thereafter laid or assessed upon the granted premises, and in case of any default in the payment of such taxes the mortgagee may demand of the mortgagor whatever amount he has been obliged to pay. It is further agreed, that “the entire mortgage debt shall become due after one month’s default in the performance of any part of the foregoing condition at the option of the holder or holders.” The notice of the time and place of sale, stated that the premises were to be sold for “breach of condition of said mortgage.” It is stated in the record that at the date of sale, which was attended by the defendant, the taxes unpaid amounted to $2,360 for the year 1919, subject to which the property was sold. The failure to pay the taxes was a breach of the mortgage warranting the foreclosure. Silva v. Turner, 166 Mass. 407. The deeds to Hewitt and Williams merely show that they purchased the equity of redemption, and, while interested in payment of the mortgage which was an encumbrance on the land, they entered into no contract to pay the debt or the taxes, and when Hewitt conveyed.to Williams his interest ceased. Williams, the last owner of the equity, who lost his interest by the foreclosure, was in a similar position. The failure to pay the taxes was a breach by the defendant of a primary obligation quite apart from that of a promisor on the note.

*72The defendant must be presumed to have known of the terms of the mortgage and he could have protected himself from the contingency of loss by reason of unpaid taxes by a suitable clause in his deed to Hewitt, assented to by the mortgagee. Codman v. Deland, supra.

If any loss ensued because of the delay to foreclose for nonpayment of taxes after Vorenberg, to whom the first extension was given, had parted with the equity, he is not entitled to have such loss considered in reduction of the debt. The rights of the defendant under the extensions, whether arising from contract or resting on subrogation, were subject to the paramount right of the plaintiff to foreclose if the taxes were not paid, and to collect from him any resulting indebtedness. American House Hotel Co. v. Hemenway, 237 Mass. 180. Greene v. Richards, 244 Mass. 495.

The plaintiff deducted from the price received at the foreclosure the amounts paid for the services of an auctioneer, the cost of revenue stamps, and of publication of the notice of foreclosure, counsel fees, and compensation to the mortgagee. The compensation to the mortgagee was authorized by the default clause of the mortgage, and it was for the jury, to whom the question was submitted, to determine whether the charges were reasonable. Bangs v. Fallon, 179 Mass. 77.

The defendant’s contention, that he is not bound by the foreclosure because the total payments of interest at the rates appearing in the record from the date of the sale to Hewitt and until foreclosure show no default, cannot be maintained for reasons sufficiently stated.

The further argument, that as one Clark, the purchaser, bid in the property for the plaintiff, the defendant could introduce evidence of its value at that time, cannot be maintained. The power authorized the plaintiff or his agent to bid, and the defendant is bound by the sale, the amount of which was credited, subject to any deduction the jury might find if the expenses of the foreclosure were excessive. McCarthy v. Simon, 247 Mass. 514.

The parties introduced evidence as to the fair value of the property at the date of the respective extensions. But the defendant’s offer of proof that Hewitt would testify that *73the fair value in 1912 and 1914 was in excess of $100,000, and Vorenberg would testify that in 1912, 1913, 1915, 1918 and 1920 its fair value was in excess of $70,000, was excluded rightly. They had ceased to be owners some years before the trial, and neither had qualified as an expert. The rule that an owner of land or of personal property, in an action where the question is in issue, may give his estimate of its value, is inapplicable. Shea v. Hudson, 165 Mass. 43. Lincoln v. Commonwealth, 164 Mass. 368, 380.

The record recites, that the plaintiff called the defendant as a witness and examined him. By G. L. c. 233, § 22, a party who calls the adverse party as a witness shall be allowed to cross-examine him; but when the defendant was called as a witness by his counsel, the trial judge ruled, that his counsel could not cross-examine him except as to the evidence given by him in his examination by the plaintiff, and the defendant excepted. The order of the introduction of evidence, and the limit of cross-examination, were within the discretion of the judge, and no error is shown. Commonwealth v. Johnson, 188 Mass. 382. Walsh v. Feinstein, 251 Mass. 109, 112. Commonwealth v. Perry, 254 Mass. 520. Commonwealth v. Sacco, 255 Mass. 369.

The defendant did not undertake to prove any assumption by Hewitt or himself of the mortgage debt at and after the sale to Hewitt, and whether Mr. Dexter, the plaintiff’s counsel until 1917, informed Mr. Petérs, who succeeded him as counsel, that the mortgage had been renewed for three years from August 28, 1915, was immaterial, and the exclusion of the defendant’s offer to prove this alleged fact was right.

We have examined all of the exceptions argued, and the result is that the motion for a directed verdict could not rightly have been granted, and that the defendant’s requests for rulings in so far as appropriate were sufficiently covered by the instructions. The exceptions to portions of the charge, when read with their context, which is full, also shows no reversible error.

Exceptions overruled.