269 Mass. 562 | Mass. | 1930
On or about March 22, 1924, the plaintiff brought an action in the Superior Court against the de-, fendants Smith and Marcus to recover damages for personal injury, and an attachment was made of all the real estate owned by Smith and Marcus in Suffolk County. The defendants were defaulted and damages were assessed by the court in the sum of $3,000 and judgment and execution issued therefor, together with $30.70 costs of suit. An execution issued which was delivered to the sheriff of Suffolk County and a seizure of the real estate was made on January 26, 1928, on the attachment made March 25, 1924. The execution remains unsatisfied. A demurrer to the bill was filed by the defendant Trachtenberg, and was sustained as to paragraphs 8, 9, 10, 11 and 13; no appeal was taken by the plaintiff from the order sustaining the demurrer.
The trial judge in the present suit at a hearing on the merits stated that the defendants admitted at the trial that on January 26, 1928, notice of a sheriff’s sale was published in a Boston newspaper, of the right, title and interest which the defendant Smith had in a certain parcel of land situated in Boston, a particular description of which was set forth in the notice of sale; and that the defendants
After the attachment was made a third mortgage was placed upon the property by Smith to the defendant Tefft on October 21, 1926, in the sum of $3,500, and was duly recorded. Thereafter on October 25, 1926, a fourth mortgage was placed upon the property by Smith to the defendant Silk and was duly recorded.
The judge found, in accordance with the twelfth paragraph of the bill, that Trachtenberg “is a straw holder of title” for Silk and has no interest in the property, and Silk is the owner of the equity, and the holder of any interest or title nominally held by Trachtenberg. In accordance with the fourteenth paragraph he found that the plaintiff by registered mail notified the defendant Tefft and his attorney Rubin of the proposed sheriff’s sale, and that the plaintiff’s attorney was told by Rubin that the second mortgage would not be foreclosed without notification to the plaintiff.
The bill alleges in part as follows: “16. That on January 21,1928, the said Tefft, without notice to your petitioner or any junior lien holder, undertook and purported to foreclose said second mortgage, and, at an alleged foreclosure sale on January 21, 1928, said property was conveyed to himself
The judge, stated that at the trial the defendants admitted the truth of the allegations in the sixteenth and seventeenth paragraphs. As to the eighteenth, nineteenth and twentieth he found as follows: In 1923, the defendant Marcus purchased the property subject to a first mortgage of $4,000, taking title in the name of Smith. There was no evidence that at that time either Marcus or Smith was insolvent or financially embarrassed. Thereafter, on July 16, 1923, Smith gave a mortgage to Marcus for $1,000, for which there was no consideration and no mortgage note was ever executed by Smith. On March 25, 1924, the plaintiff attached the property in an action of tort in which Smith was named as defendant and later Marcus was joined as a party defendant. On or about July 24, Marcus assigned the second mortgage to one Lewis, a brother-in-law of the defend
The evidence before the trial judge was taken by a Stenographer; it is embodied in the record and consists of more than one hundred and fifty printed pages. An examination
It results that upon the findings, which cannot be said to be erroneous, the attachment was subject to the second mortgage. It follows that the final decree dismissing the bill must be affirmed, with costs.
Ordered accordingly.