Waltham Co-operative Bank v. Barry, 231 Mass. 270

Waltham Co-operative Bank v. Barry

231 Mass. 270 | Mass. | 1918

Braley, J.

If Barry, the defendant mortgagor, were the only party against whom relief is sought, the mistake of the plaintiff's treasurer in discharging the unpaid mortgage on the margin of the land records under the provisions of R. L. c. 127, § 34, as amended by St. 1908, c. 149, could be rectified by the decree for cancellation which was entered by the trial court. Swasey v. Emerson, 168 Mass. 118. Holbrook v. Schofield, 211 Mass. 234.

But the defendants McGlinchey and the Pittsburgh Plate Glass Company after the discharge had been recorded and without actual notice of the mistake, having attached the land on mesne process as the property of Barry in actions of contract which were pending when the bill was filed, the question'for decision is whether their rights as attaching creditors are subordinate to the mortgage.

The plaintiff appeared on the record at the date of the attachments to have been the owner of a mortgage which had been discharged under the statute whereby a discharge on the margin of the page where the instrument appears of record is given the same force and effect as a deed of release duly executed, acknowledged and recorded. While a by-law of the bank authorized the treasurer, *273or in his absence the president or vice-president, to discharge a mortgage upon receipt of the amount, it is not alleged that the treasurer exceeded his powers or perpetrated a fraud upon the bank. The conditional limitation of the by-law was undisclosed, and the defendants rightly could rely on the record as conclusive evidence of the estate and title of their debtor. Welch v. Priest, 8 Allen, 165. Adams v. Pratt, 109 Mass. 59. Stark v. Boynton, 167 Mass. 443, 445. Livingstone v. Murphy, 187 Mass. 315, 319, 320. Wenz v. Pastene, 209 Mass. 359. The defendants accordingly are innocent purchasers for value, and, if judgment is recovered, the lien of the attachment has precedence over the plaintiff’s mortgage. Woodward v. Sartwell, 129 Mass. 210. Cowley v. McLaughlin, 141 Mass. 181,182. D’Arcy v. Mooshkin, 183 Mass. 382. Whitney v. Metallic Window Screen Manuf. Co. 187 Mass. 557.

The cases of Bruce v. Bonney, 12 Gray, 107, and Willcox v. Foster, 132 Mass. 320, on which the plaintiff places much reliance, do not support its contention, that a marginal discharge executed by mistake is absolutely void under the circumstances shown by the present record. It was held in those cases that where through mistake a discharge instead of an assignment of a mortgage had been taken, and no intervening rights were affected, a-court of equity can order the discharge cancelled and the assignment substituted. Short v. Currier, 153 Mass. 182, 184.

The decree as to these defendants must be reversed, and the bill dismissed with costs.

Ordered accordingly.