263 Mass. 212 | Mass. | 1928
After rescript in Siegemund v. Building Commissioner of Boston, 259 Mass. 329, the New York Life Insurance Company (hereinafter called the Insurance Company), Nathan Ginsburg and Sidney A. Goodman petitioned to intervene. The petitions were denied by a single justice, and the case reported. The facts were fully set out in Siegemund v. Building Commissioner of Boston, supra, and it was there decided that the word “street” as used in the zoning act, means a public way, and that Franklin Garden as shown on the record was not a street.
Ginsburg and Goodman were allowed to appear at the hearing before the full court by their counsel, Asa P. French, who as amicus curiae filed a brief. The lis pendens statute, G. L. c. 184, § 15, does not help them as they must have had actual notice of the litigation. Steele v. Estabrook, 236 Mass. 252, 255.
The Insurance Company on November 25, 1926, took for a valuable consideration a first mortgage, on the premises in question, which was duly recorded; it now holds the note secured by the mortgage and the mortgage title to the prop
No memorandum as required by the Us pendens statute was recorded in the registry of deeds. That statute, G. L. c. 184, § 15, provides “A writ of entry or other proceeding, either at law or in equity, which affects the title to real property . . . shall not have any effect except against the parties thereto . . . and persons having actual notice thereof, until a memorandum containing the names of the parties to such proceeding, the court in which it is pending, the date of the writ or other commencement thereof, the name of the town where the real property liable to be affected thereby lies . . ; is recorded in the registry of deeds for the county or district where such real property lies . . . At common law the Insurance Company would be deemed to have notice of the proceeding instituted by Siegemund to enforce the zoning law. Haven v. Adams, 8 Allen, 363, 367. Wight v. Packer, 114 Mass. 473, 474.
G. L. c. 184, § 15, does not in our opinion apply to the petition for mandamus brought by Siegemund against the building commissioner. Her petition was not a proceeding contemplated by the statute. The action at- law or suit in equity which is within the scope of the statute is one where the right or title of the parties in some particular real estate, the subject matter of the action or suit, is involved, and where the purpose of the proceedings is to determine the title and rights of the parties. It is to be assumed that the statute includes all actions and proceedings at law and in equity where title to a tract of land between parties is concerned and includes actions and proceedings to enforce a hen or encumbrance on real estate. But the petitioner in the original action was not claiming any title or interest in the real estate in question; she was not seeking to establish a
Undoubtedly the Insurance Company could have been admitted to appear and answer to the petition, Siegemund v. Building Commissioner of Boston, supra, at page 335, and it would now be admitted as a party if the opinion in the original action should be revised. We are, however, satisfied with the result reached in the opinion, and see no reason why it should be changed. The rights of all the parties do not require that the Insurance Company should be permitted to intervene. The zoning laws are binding upon all, and are binding on a mortgagee who, without notice of their violation, lent its money. In dealing with real estate all who are interested are required to take notice of the zoning laws. They would be of little value if they could not be enforced against all parties.
Petition denied.
