Altobelli v. Montesi

• Decision Date: 26 May 1938
• Citation: Altobelli v. Montesi, 300 Mass. 396, 15 N.E.2d 463 (Mass. 1938)
• Parties: ALTOBELLI v. MONTESI et al. SAME v. MONTESI.
• Court: Supreme Judicial Court of Massachusetts

300 Mass. 396

15 N.E.2d 463

ALTOBELLI

v.MONTESI et al.

SAME

v.MONTESI.

Supreme Judicial Court of Massachusetts, Middlesex.

May 26, 1938.

Suits in equity by Carmino Altobelli against John Montesi and another and by Carmino Altobelli against John Montesi to have a mortgage and the foreclosure deed thereunder declared null and void and for an accounting.From the final decrees, the plaintiffs appeal.

Decision in accordance with opinion.Appeal from Superior Court, Middlessex County; Beaudreau, judge.

H. L. Metcalf and A. T. Handverger, both of Franklin, for appellants.

T. L. Thistle, of Boston, for appellees.

COX, Justice.

These are appeals by the plaintiff from final decress in two suits in equity.Both suits were referred to the same master, who filed separate reports.From the admissions in the defendant Montesi's answer and the master's report in the first suit, the following facts appear.When one Antonio Vannicelli died, the title to a parcel of real estate, in Framingham, stood in his name and that of his brother, Angelo Vannicelli, a defendant, hereinafter referred to as Vannicelli, as tenants in common.On November 7, 1934, Vannicelli was appointed administrator of his brother Antonio's estate and qualified as such.On December 14, 1934, by decree of the Probate Court, Vannicelli, as administrator was authorized to ‘join’ in a mortgage of the real estate of the decedent in the sum of $500, for the purpose of paying debts, and on January 3, 1935, purporting to act under this decree, he, as administrator, executed a power of sale mortgage of an undivided half interest in the premises to the defendant Montesi to secure the payment of $500.There is a finding that he did not ‘join’ in a mortgage as he was authorized to do under the decree of the Probate Court and that the mortgage is not in conformity with the decree.Prior to the filing of the petition asking for authority to ‘join’ in a mortgage of the interest of the decedent, Vannicelli had applied to the defendant Montesi for a loan of $500 and, after some discussion, the latter had agreed to lend $1,000 on the entire premises.Upon the advice of a conveyancer,Vannicelli, on the same day that he, as administrator, executed the mortgage to the defendant Montesi, executed another mortgage for $500 to Montesi of his own undivided half interest.On January 28, 1937, the mortgages being in default, Montesi made an entry for the purpose of foreclosing them and advertised the premises for sales to be held on the same day for the purpose of foreclosing both mortgages.The sale under the mortgage executed by Vannicelli individually ‘was not completed,’ as appears more fully in the report of the master in the second case.The mortgage executed by Vannicelli as administrator was foreclosed by sale to Montesi on March 6, 1937.Vannicelli conveyed his interest in the premises to the plaintiff on June 25, 1937.

The specific prayer in the plaintiff's bill in the first case is that Vannicelli's mortgage, as administrator, to Montesi and the foreclosure deed thereunder, ‘be declared null and void and stricken from the record to remove the cloud upon the plaintiff's title.’A decree was entered dismissing the bill with costs, and the plaintiff appealed.

The Probate Court had jurisdiction to authorize the administrator to mortgage the real estate of the decedent for the purpose of paying the debts.G.L.(Ter.Ed.)c. 202, § 28.One tenant in common may bind his own interest in the common property by mortgage, Colton v. Smith, 11 Pick. 311,22 Am.Dec. 375;Torrey v. Cook, 116 Mass. 163;Drew v. Carroll, 154 Mass. 181, 185, 28 N.E. 148;SeeRoxbury Painting & Decorating Co. v. Nute, 233 Mass. 112, 118, 123 N.E. 391, 4 A.L.R. 680; and a mortgage of a deceased cotenant's interest in land, if executed in accordance with the terms of a license granted by the Probate Court, would not affect the title of the surviving cotenant, Drew v. Carroll, 154 Mass. 181, 185, 28 N.E. 148;Roxbury Painting & Decorating Co. v. Nute, 233 Mass. 112, 118, 123 N.E. 391, 4 A.L.R. 680.If there is a breach of condition of such a mortgage and it is foreclosed properly, the purchaser becomes a tenant in common with the other cotenant.Prince v. Shepard, 9 Pick. 176, 186.A plaintiff, in order to maintain a bill to quiet title, must show that he has a record title which is injuriously affected.Blanchard v. Lowell, 177 Mass. 501, 59 N.E. 114;First Baptist Church of Sharon v. Harper, 191 Mass. 196, 77 N.E. 778;Daley v. Daley, Mass., 14 N.E.2d 113.It is elementary that ‘Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore, they all occupy promiscuously.This tenancy therefore happens where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time.’2 Bl.Com. 191;Silloway v. Brown, 12 Allen 30, 36;Gage v. Gage, 66 N.H. 282, 290, 29 A. 543,28 L.R.A. 829.It is unnecessary to consider the validity of the mortgage which the plaintiff seeks to have declared void.SeeWellman v. Lawrence, 15 Mass. 326;Litchfield v. Cudworth, 15 Pick. 23, 31;Crowley v. Hyde, 116 Mass. 589, 591;Justice v. Soderlund, 225 Mass. 320, 323, 114 N.E. 623.The plaintiff's title is in no wise affected by the mortgage.His title in the common property remains unimpaired and he is not entitled to maintain the bill in the first case.

The second suit is for an accounting with Montesi of the amount due on the mortgage executed by Vannicelli, individually, of his undivided half of the premises in question, the plaintiff alleging that he desires to pay whatever is found due and to receive a discharge of the mortgage.The master finds that before Antonio Vannicelli died, he and his brother, as tenants in common, mortgaged the premises in question to the Home Owners' Loan Corporation‘in the sum of about $3,500.’The facts are recited as to the giving of the two mortgages, their being in default, the entry to foreclose, the advertisements of the foreclosure sales and the sale to Montesi, as hereinbefore set out.Further findings are that Montesi made an open, peaceable and unopposed entry upon the premises and ‘took possession thereof under the terms and provisions of his mortgages.’On the advertised day of the sales, and at the sale under the mortgage given by Vannicelli individually, the plaintiff made a bid of $1,300, and made a deposit of $200 as was required by the terms of the sale.‘This sale was never consummated.’The defendant prepared and was ready to deliver to the plaintiff a foreclosure deed but the plaintiff at no time was ready and willing to accept the deed and pay the balance of his bid.Vannicelli gave the plaintiff a deed of his interest in the premises on June 25, 1937.The account is stated that the balance found due the defendant is $880.04, credits being allowed the plaintiff for the amount of his deposit of $200 and for one half of the rents collected by the defendant while in possession of the premises.The trial judge evidently adopted this finding as to the amount due, as the final decree adjudges the plaintiff's indebtedness to the defendant to be $880.04 together with interest thereon from July 3, 1937.The plaintiff objects to several items which go to make up this $880.04.

G.L.(Ter.Ed.)c. 244, § 20, provides: ‘If the mortgagee * * * has had possession of the land, he shall account for rents and profits, and be allowed for * * * all lawful taxes and assessments paid and for all other necessary expenses in the care and management of the land.A balance of such account, if due from him, shall be deducted from the debt due on the mortgage; if due to him, shall be added to the debt, and paid or tendered as such.’Apart from statute it has been said that ‘a mortgagee, by taking possession for the purpose of foreclosure, imposes upon himself the duty of a provident owner.’Miller v. Lincoln, 6 Gray 556, 557.

The plaintiff objects to two items allowed the defendant of one half the amounts of premiums paid for policies of fire and public liability insurance covering the premises.We have the same difficulty as was expressed in Donohue v. Chase, 139 Mass. 407, 2 N.E. 84, of not knowing from the record what the contract, if any, between the...