Pierce v. Chace

108 Mass. 254 | Mass. | 1871

Colt, J.

The plaintiffs in the first named suit have no valid

title to the equity of redemption in the mortgaged premises. The deed from which they derive title, given by Caleb to John and Candace Anthony, conveyed to the grantees an estate subject to mortgage, which they took as husband and wife, by entireties and not by moieties. Neither could convey during their joint lives so as to bind the other, or defeat the right of the survivor to the whole estate. Shaw v. Hearsey, 5 Mass. 521. The wife’s interest was that of owner of the fee, and she parted with no right by joining in her husband’s deed to Mrs. Pierce solely for the purpose of relinquishing her right to dower and homestead. Title to her land could be acquired only by deed joining both husband and wife in the efficient and operative words of the conveyance. Upon the death of her husband, she became sole owner of the premises, subject to the mortgage.. Bruce v. Wood, 1 Met. 542. Jewett v. Davis, 10 Allen, 68. Wales v. Coffin, 13 Allen, 213.

Nor was Mrs. Anthony estopped, either at law or in equity, from asserting her sole title to redeem. The agreement which is relied on as the basis of this estoppel was not made by her with reference to her separate property, and is not binding upon her. At most, it was only the agreement of her husband, assented to by her, for the conveyance to Mrs. Pierce of the undivided half of the premises supposed to belong to him. She had no legal capacity to make such a contract. The fact that it has been performed on the part of Pierce, and the consideration paid, and a deed given, does not. prevent her from setting up incapacity, for this would be to bind her indirectly to an obligation which she could not assume directly. Her agreements and admissions were made under a mistake as to her right of property, without fraud or intention to deceive; a mistake in which all parties participated. And besides, the acts and admissions of a married woman cannot be used to render effectual a void conveyance of her real estate. She is not thus to be deprived of that protection which the law affords. Her title to land can only be divested by such conveyance as the statutes authorize. Lowell v. Daniels, 2 Gray, 161. Bemis v. Call, 10 Allen, 512.

The rules which courts of equity adopt, in enforcing paroi contracts relating to land, on the ground that they have been already performed in part, and which are sometimes applied in apparent violation of the maxim that equity follows the law, do not aid the plaintiffs: first, because of the wife’s incapacity to become a party to the contract; and next, because the facts show no part performance to take the case out of the statute of frauds. Glass v. Hulbert, 102 Mass. 24, 28.

But it is objected, that, after the original bill was brought, and before the answer and cross bill were filed, the mortgage as to the Anthonys was fully foreclosed by lapse of time, and that the original bill cannot now be availed of by them to extend the time. This depends upon their rights as defendants in that suit.

It is an elementary rule, that courts of equity, after they have once acquired jurisdiction of the subject matter, will, so far as possible, do complete justice to all parties, so that there may be an end of controversy. They require that the rights of all within their jurisdiction, whose interests may be affected by the final adjudication, shall be provided for therein. And the rules óf pleading accordingly require that all .persons in interest shall be made parties, either plaintiff or defendant, to the original bill. In bills for the redemption of mortgages, all who have any right to redeem must be joined. Thus John and Candace Anthony, who are alleged to be part owners of the mortgaged premises, having an equal right to redeem in common with the plaintiffs, were made necessary parties. If the bill had been maintained upon the plaintiffs’ theory, the mortgage would, in the end, have been discharged as to all parties, upon contribution towards its payment by all in proportion to their respective interests; because the plaintiffs could not redeem their specific interest without paying the whole amount due on the mortgage. The rights of all, whether plaintiffs or defendants, would therefore have been secured against foreclosure by the commencement of the original suit. It was not necessary, pending that suit, for any party to it, in order to preserve his right, to make a tender or commence a suit on his own account. The rights of all were held in suspense until it could be determined who were entitled to redeem. It can make no difference that the plaintiffs fail to establish their title in whole or in part, for such result will not place those who are shown to have the right to redeem, although nominally defendants, in a worse condition than they would otherwise have been.

The first suit, then, was, within the meaning of the statute, a suit brought for redemption within the three years limited, by the person entitled to redeem. Gen. Sts. c. 140, § 19. It cannot be the intention of the statute that the three years should cease to run only against the party plaintiff, and continue to run against the other parties equally interested in the right to redeem. The provision of § 31 of the same chapter, authorizing other persons interested to be made parties during the pendency of the suit, upon such terms as the court may order, is inconsistent with such a construction, and shows that the suit enures to the benefit of all the parties to it.

It is insisted that the filing of the answer and cross bill is to be regarded as the first step sufficient to stop the running of the three years as to Mrs. Anthony. But the filing of a cross bill is not the commencement of an independent suit. It is a mode of defence, and is considered as an auxiliary or dependency of the first suit, constituting with it but one cause. It follows, that the relief which the administrator of Mrs. Anthony here seeks, and which cannot be denied, is that to which she became entitled upon the filing of the bill against her, and relates back to the commencement of that suit. Field v. Schieffelin, 7 Johns. Ch. 250. Cartwright v. Clark, 4 Met. 104. White v. Buloid, 2 Paige, 164.

The administrator of Mrs. Anthony is now entitled to redeem the whole of the mortgaged premises, upon paying to the parties holding it the whole amount due on the mortgage.

Decree accordingly.