Bacon v. Abbott
| Decision Date | 27 June 1884 |
| Citation | 137 Mass. 397 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | John O. Bacon v. Charles E. Abbott & another |
Middlesex. Bill in equity, originally brought against Charles E. Abbott alone, to redeem land from a mortgage given by the plaintiff to Abbott, on May 26, 1876, to secure a promissory note for $ 200, payable in six months with interest, which mortgage and note were assigned by Abbott to Eliphaz W Arnold on December 15, 1879. Arnold was subsequently made a party defendant. Hearing before C. Allen J., who ordered a decree for the plaintiff; and the defendants appealed to the full court. The facts appear in the opinion.
Decree affirmed.
J. F Colby & G. C. Abbott, for the defendants.
D. B Gove, for the plaintiff.
The chief objection urged to the plaintiff's right to redeem is that, after making the mortgage, he went into bankruptcy, and that the assignees have not reconveyed the property. It appears, however, that the assignees' interest is purely technical and formal. The plaintiff was seised of the premises, by taking the rents and profits, when the bill was filed. The administration of the estate in bankruptcy was at an end. He had turned out solvent, paid his creditors in full, and seems to have been entitled to his discharge. He has been discharged since the beginning of the suit. The statement on behalf of the assignees at the hearing, that they were willing to convey to the proper person, amounted to an admission that they held the property upon a dry trust for the plaintiff. Charman v. Charman, 14 Ves. 580, 585. Wearing v. Ellis, 6 DeG. M. & G. 596, 603. The plaintiff's interest is established, therefore, and it appears also that the decree does not encroach upon the jurisdiction of the United States courts over the distribution of the bankrupt's estate. Furthermore, if the defendant Abbott had fully performed the contract which the mortgage was given to pay him for, he would have procured the reconveyance, the want of which he now sets up as a bar to this suit. Under these circumstances, we think the plaintiff is entitled to redeem. Jones v. Dexter, 125 Mass. 469; S. C. 130 Mass. 380, 383. Wearing v. Ellis, ubi supra.
The defendant Arnold stands in no better position than Abbott, as he took the assignment of the mortgage when the note was overdue. Fish v. French, 15 Gray 520. The plaintiff's payment of interest while Abbott was working for him as agreed did not change the case.
After this suit was begun, and the plaintiff had moved to amend his bill...
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