214 Mass. 121 | Mass. | 1913
The liens of the plaintiffs for labor have been established as of a date subsequent to the recorded mortgage given
Upon its face the mortgage purports to be security for the payment of the promissory note of the mortgagor for $6,000. But the paroi evidence leaves no doubt, and the judge rightly assumed, that the actual consideration was for moneys to be advanced from time to time by the mortgagee in payment for a building to be erected upon the land. Hall v. Tay, 131 Mass. 192, 194. The question of priority under R. L. c. 197, § 5, depends primarily upon the inquiry, whether as the process of construction proceeded advancements to the amount named were obligatory or optional with the mortgagee. Gerrity v. Wareham Savings Bank, 202 Mass. 214. Gray v. McClellan, ante, 92. It is uncontroverted that, after deducting interest on the full amount, the remainder was credited on the books to the “A. W. Soutter Building Account,” upon which, as the value of the property was increased by the construction of the building, the mortgagor was permitted to draw and to transfer the amounts so drawn to her own private account kept with the defendant company. The defendant company having been absolutely obligated to pay the loan named in the mortgage, it is immaterial that only a very small portion had been thus transferred before the plaintiffs began work, or that before the entire amount had been disbursed the company received notice of the liens. Gray v. McClellan, ante, 92.
But, if by force of the statute the liens must yield to the mortgage, the plaintiffs ask that only one bill of costs be taxed. The subject of controversy as to each defendant is the same and even if the defendants severed in their answers, the plaintiffs ought not to be trebly mulcted. R. L. c. 203, § 14. Clark v. Reed, 11 Pick. 446. Pratt v. Bacon, 11 Pick. 494. Miller v. Lincoln, 6 Gray, 556.
The decree dismissing the bill when thus modified is affirmed, with costs of the appeal.
Ordered accordingly.
