Wood v. Inhabitants of Westborough

140 Mass. 403 | Mass. | 1886

Deyens, J.

As the St. of 1881, c. 110, (Pub. Sts. e. 49, § 110,) was remedial in its character, and was not intended to change any rights of parties, who, as mortgagors or mortgagees, had interests in land which had been taken for public purposes, but only to provide a more convenient mode of adjudicating and ad-, justing them, it would be applicable to proceedings begun after its passage, even if the land to which they related had been previously taken. One remedy may be taken away and another substituted therefor, although such legislation operates incidentally on existing rights. Simmons v. Hanover, 23 Pick. 188. Upham v. Raymond, 132 Mass. 186. Nothing was added to the burden of the party who had taken the land, and nothing was taken away from the rights of the landowner, but the statute simply provided for the distribution of the damages in accordance with the equitable interests of those interested.

Before the enactment of this statute, the only remedy which a mortgagee not in possession had, when any portion of the land was taken for public purposes, was in equity against the mortgagor. The latter was recognized as the owner; he alone could maintain a petition for damages; and it was only by a proceeding against him, the taker of the land being made a party thereto when deemed necessary, that the mortgagee was able to have such damages as might be recovered devoted to the payment of the mortgage debt. Farnsworth v. Boston, 126 Mass. 1. Breed v. Eastern Railroad, 5 Gray, 470, n.

The St. of 1881 provides a remedy for mortgagors and mortgagees, by adopting for them, in all cases, the statutes which had previously applied only in cases where land had been taken by railroad corporations. St. 1874, c. 372, §§ 76, 77. Pub. Sts. o. 112, §§ 108, 109. Under these sections, the mortgagors and mortgagees may join in the petition, or such petition may be initiated by either party. All petitions are to state all mortgages known to exist on the premises, and the tribunal to which the petition is presented “ shall order the petitioner to give notice thereof to all parties interested as mortgagors or mortgagees.”

In the case at bar, the presiding judge ruled that the plaintiffs had a complete and adequate remedy at law under the statute, and had no right in equity to relief against the mortgagor, to whom, the whole damages had been, awarded. This was, in effect, a ruling that the remedy given to a mortgagee by the St. of 1881 is to the exclusion of any other, and that, by reason of the fact that he may begin a petition himself, he can make no claim to the damages recovered by the mortgagor. It does not appear in the case at bar, that the plaintiffs were made parties to the petition of the mortgagor, or that any such notice was given to them as the statute contemplates, or that they, or either of them, had any actual notice of its pendency before the hearing upon the petition. It may well be, that, if a mortgagee made a party to a petition, and properly notified thereof, should see fit not to take part therein, and should thus avoid the responsibilities and expenditures belonging to him as a party, it could properly be held that he had waived any claim to the damages which the mortgagor might recover. In such case, it would be a reasonable construction of the statute that the proceeding excluded him from the equitable remedy against the mortgagor which he formerly had. But it should not go further than this.

The mortgagee out of possession cannot be expected to have that full knowledge of the condition of the mortgaged premises possessed by the mortgagor. To construe the statute as excluding him from any remedy except that which it provides, because it authorizes him to begin a petition himself, might often do him serious injustice. The sections of the statute under consideration give to the mortgagor and mortgagee the rights there conferred, in express terms, “in addition to their rights under the mortgage,” and the right in equity which the mortgagee had to have the damages received from the taking of the land applied to the liquidation of his debt should not be taken away unless he has been made a party to the proceeding by which they have been appropriated to the mortgagor. The proceedings in the case at bar do not, therefore, exclude the. assignees of the mortgage from their remedy in equity against the mortgagor.

There remains the question whether the facts disclose such loches on the part of the plaintiffs that they cannot properly maintain the equitable remedy they seek. It was found and ruled by the presiding judge, that there had been no such loches as would bar the plaintiffs from seeking equitable relief; that there had been no actual or intentional waiver by the plaintiffs, or those under whom they claimed, of any right to have the damages applied to the satisfaction of the mortgage. The judge was, on the facts, authorized thus to find. Newton, the administrator, held the mortgage unforeclosed on account of the controversy between Aldrich and Prentiss. W. L. Wood knew of the taking of the brook, but was not then an owner of the mortgage. It does not appear that either of the other owners did so. Neither of the plaintiffs is shown to have known of any rights which they had to collect damages, and, although W. L. Wood was informed of Aldrich’s petition, it was when the case was actually on trial, no opportunity of preparation therefor being given to him.

Decree dismissing bill reversed.