Trow v. Berry

113 Mass. 139 | Mass. | 1873

Morton, J.

This case was referred to a master, “ to hear the parties and state the facts and make report thereof to the court; ” and it now comes before us upon exceptions to the master’s report. It is the well settled practice that the report of a master upon questions of fact referred to him has substantially the weight of the verdict of a jury, and his conclusions are not to be set aside or modified without clear proof of error or mistake on his part. Dean v. Emerson, 102 Mass. 480.

The first exception to the master’s report is to his finding that on March 11, 1852, the plaintiff was the owner of the premises subject to the Mixter mortgage and to the mortgage created by the transaction of February 14, 1837, and that neither of said mortgages was then foreclosed. The defendant does not deny that the deed of February 14, 1837, and the bond of defeasance of the same date, being parts of the same transaction, constituted a mortgage. This mortgage covered both the $1500 loaned by the mortgagee at that time, and whatever amount he might after-wards pay upon the Mixter mortgage. But when Berry paid the Mixter mortgage, it was assigned to him, and the plaintiff gave him a certificate of peaceable possession for the purpose of foreclosure. The parties thus elected to keep the Mixter mortgage alive, and there were two mortgages upon the estate. The question whether either of those mortgages was foreclosed was entirely a question of fact depending upon the agreements of the parties. The mortgagee would acquire an absolute title to the estate under the Mixter mortgage, after the lapse of three years from the time of his entry to' foreclose, unless he waived or opened the foreclosure. But it was competent for him to open it by an agreement to that effect. And the evidence reported by the master clearly justified him in finding as a fact, that there was an agreement between the parties that the estate should be held by Berry merely as security for an existing debt. He received for many years the interest on the Mixter note and on the bond, indorsing such payments, as interest, on the note and bond respectively; he extended the bond from time to time; the plaintiff occupied the estate all the time, paying all the taxes assessed thereon. This and the other evidence in the case tended strongly to show that the real relation between the parties was that of debtor and creditor, mortgagor and mortgagee j and cannot be explained consistently with the right of the mortgagee to hold the estate under the foreclosure. Lawrence v. Fletcher, 8 Met. 153. Harrison v. Phillips Academy, 12 Mass. 456. Newhall v. Burt, 7 Pick. 157. Murphy v. Calley, 1 Allen, 107. Joslin v. Wyman, 9 Gray, 63.

The ground taken by the defendant that, by the taking of the first bond and by giving a new bond on February 12, 1840, the title became absolute in Berry, cannot be sustained. If the parties intended to put an end to the old relation of debtor and creditor, and the new bond was an independent transaction, it might have that effect. But if the new bond was merely a renewal or extension of the old one, representing the same debt, the transaction would not operate as a foreclosure of the mortgage. The master nos found the latter to be the nature of the transaction, and we think the evidence justifies this finding. McIntier v. Shaw, 6 Allen, 83. Falis v. Conway Insurance Co. 7 Allen, 46. Trull v. Skinner, 17 Pick. 213.

The defendant’s second exception is to the finding of the master that the bond of February 12, 1840, was never given up to be cancelled. It appeared that this bond was given to Berry in 1856 or 1857, but the master finds that it was given to him to be exhibited to the assessors of taxes, but was never given up to be cancelled. This is purely a question of fact, depending not only upon inferences to be drawn from the acts of Berry, but upon the credit to be given to the plaintiff and other witnesses examined orally before the master. Nothing appears in the report of the master to show that his conclusions upon it were erroneous.

The defendant claimed at the hearing that on March 11, 1852, there was a new contract entered into between the plaintiff and Scotto Berry, Sen., by which the plaintiff abandoned his right to redeem the two mortgages; and his third and last exception is to the finding of the master that such new contract was not proved, but that the relation of mortgagor and mortgagee continued until the plaintiff filed his bill. This claim presented a question of fact for the master’s decision, and we must regard his finding upon it as conclusive, inasmuch as all the evidence upon which it is based is not reported to us. There is nothing in the report to show that it was erroneous. The giving of the lease to a son of the plaintiff, the indorsement of the annual payments made by the plaintiff as rent instead of as interest, and the fact that the parties did not understand the legal effect of their acts, were evidence tending to support the defendant’s claim, but they were not conclusive, and it was for the master to decide whether they were overbalanced by the other evidence in the case, and whether upon the whole it was fairly proved that the real relation between the parties, recognized and understood by both, was that of debtor and creditor. We are of opinion that the defendant has not shown that any of the findings were erroneous, and that upon the facts found the plaintiff is entitled to redeem. Decree for the plaintiff.