Worthy v. Warner

119 Mass. 550 | Mass. | 1876

Colt, J.

The defendant Warner denies that the plaintiff has now the right to redeem the premises in dispute, and contends that the mortgage from Mrs. Luce to Sprague, by which he derives title, has been legally foreclosed.

In a suit upon this mortgage, conditional judgment was recovered by Sprague, and an execution for possession was issued dated May 6,1869. The officer’s return of the delivery of seisin and possession, and the acknowledgment thereof by the attorney of Sprague upon the back of the execution, are both dated May 3, instead of June 3, 1869, which without doubt was the true date. The execution and the officer’s return with the attorney’s acknowledgment was, however, left for record in the registry of deeds, June 10, 1869, within the time required by law, as appears from the register’s certificate upon it.

It is contended by the plaintiff that the return must be taken as it stands, without amendment; and that Sprague’s possession, therefore, does not appear to have been obtained in a way which is effectual under the statute to foreclose the mortgage, and cannot so operate, however long continued. The statute provides that possession recovered by a real action in which conditional judgment is rendered, and continued peaceably for three years, shall foreclose forever the right of redemption. Gen. Sts. c. 140, § 1. It is apparent from the date of the execution, and the time of its registration, that the date of the return is an error. The papers as they stand indicate that June 3 was the date intended; but whether so or not, it is certain from the whole record alone, without resort to other evidence, that possession was actually taken by Sprague’s attorney under and by virtue of the judgment and execution, on some day after the process was issued, and before June 10, 1869, when it was left for registration. This was enough to commence the foreclosure, and, counting only from the latter date, there is time for three years’ possession by the mortgagee, or those claiming under him, before this bill to redeem was filed.

The plaintiff further contends, that, before the defendant Warner acquired title, the mortgage had been paid by Sidney A. Luce, after he became owner of a legal interest in the equity of redemption; or, at least, that there had been a waiver and abandonment of the foreclosure by the holder of the mortgage.

It appears that Sprague’s conditional judgment was recovered against Luce as tenant by the curtesy, and also against the two minor heirs of Mrs. Luce, who were all made parties after her death. The point relied on depends upon the effect to be given to the transaction between Sprague, Luce and his sureties, and the insurance company, after judgment had been recovered for foreclosure. The case shows that Luce, desiring to pay Sprague and obtain a small loan in addition, gave to the company a note dated June 7,1869, with sureties, payable in three years, for the whole amount, and the company at the same time took an assignment from Sprague, under seal, of his judgment, with all the lands that might be recovered thereon, and agreed, under seal, to assign the same to Luce on payment of the note. The latter agreement recited that the company had satisfied Sprague for the assignment, and had lent Luce a further sum sufficient to make up the amount of the note. At the same time, and as part of the same transaction, Luce gave to his sureties on the note a conveyance under seal of all his interest in the judgment, requesting the company to transfer the same to them in case they-the sureties, should pay the note. The note was, in fact, paid by the sureties shortly before its maturity; and, after the time for foreclosure had expired, the judgment was assigned and the lands described in the execution quitclaimed by the company to the sureties. The sureties, claiming to be absolute owners, shortly after sold and conveyed the premises to the defendant Warner, who had full knowledge at the time of the facts above stated relating to the title. Sprague also about the same time quitclaimed all title in the land to the defendant Warner.

In view of the legal and equitable rights of all parties under the several deeds and assignments, it is plain that the payment of the note by the sureties cannot be construed as a payment of the Sprague mortgage, or as manifesting .an intention to waive or abandon its foreclosure; on the contrary the purpose and effect of all the proceedings was to transfer to the insurance company in the first instance, and then to the sureties, the security of the mortgage with the benefit of the judgment for foreclosure and the possession had under it. The amount due was paid Sprague by the insurance company and the judgment assigned by him to them directly; they became, if not the legal, at least the equitable, owners of the mortgage. This title passed to the sureties, was conveyed to Warner, and was confirmed by Sprague’s deed conveying whatever legal title may have remained in him.

The mortgage thus held by the insurance company did not lose its character because' Luce had given his note with sureties feo> secure the amount paid Sprague. If Luce had himself paid that amount, in accordance with his purpose and intention, and the judgment had been transferred to him, the case would have been different, upon | the question whether it should be treated as a discharge of the mortgage. It was not paid by him, but by his sureties, to whom it was agreed, both by him and the company, that the security should be transferred to be held by them and applied as indemnity against their liability. They held it after foreclosure by an absolute title, liable to account only for its faithful application. There is no claim that it was not fairly and honestly sold and the proceeds applied by the sureties. No charge of fraud on the part of the defendant is open upon this report. Bill dismissed, with costs.