Bloch v. Budish

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtSANDERSON
Citation180 N.E. 729,279 Mass. 102
PartiesBLOCH v. BUDISH et al.
Decision Date22 April 1932

279 Mass. 102
180 N.E. 729

BUDISH et al.

Supreme Judicial Court of Massachusetts, Worcester.

April 22, 1932.

Appeal from Superior Court, Worcester County; Hammond, Judge.

Suit by Minnie Bloch against Louis Budish, and John P. Halnon and another, executors. From a decree for plaintiff, John P. Halnon and another appeal.

Reversed and rendered.

[279 Mass. 103]A. M. Hillman, of Worcester, for plaintiff.

C. W. Proctor, of Worcester, for defendants.


This is an appeal from a final decree allowing a mortgagee to reach and apply in satisfaction of a balance due on a mortgage debt the mortgagor's right to require the grantee of the property, who purchased it from the mortgagor subject to the mortgage, to carry out his agreement to assume and pay the mortgage debt. The bill was filed October 21, 1930.

The prayers asked that the indebtedness of the plaintiff against Louis Budish and the executors of the grantee arising from the deficiency in the foreclosure of the mortgage be established; that the plaintiff be given any rights Budish may have against the executors of the grantee under the deed; that the executors be ordered to pay the amount found due the plaintiff from Budish upon the note; and that the plaintiff be ordered to reach and apply in satisfaction of her claim against Budish any sums the court may find to be due from the executors of the grantee to Budish. The answers of the executors set up the defense of the pendency of the bankruptcy proceedings of Budish and that the rights set forth in the bill, if any, are no longer vested in the plaintiff but inure to the benefit of the trustee in bankruptcy of Budish. The answer of Budish alleged the filing by him of a petition in bankruptcy listing as a creditor the plaintiff; that the claim of the plaintiff is dischargeable in bankruptcy, and in it he pleads his discharge or the pendency of his bankruptcy as a defense to the suit.

The facts found, briefly summarized, are that on February 8, 1928, the plaintiff conveyed to the defendant Louis Budish a tract of land with the buildings thereon and received in partial consideration therefor a note of Budish secured by a first mortgage upon the premises conveyed, payable in semiannual installments of $50 and the balance at the end of five years payable on demand. On March 13, 1928, Budish conveyed the premises in question to Julia A. [279 Mass. 104]Barrett by deed containing the following provision: ‘Said premises are conveyed subject to a first mortgage in one Bloch in the sum of $9100.00 * * * which the grantee herein named assumes and agrees to pay.’ On January 2, 1930, Julia Barrett died, and on February 10, 1920, the defendants Keating and Halnon were duly appointed and qualified as executors of her will. The plaintiff will be referred to as the mortgagee, Budish as the mortgagor, and Barrett and her executors as the grantee, unless they are otherwise designated. In February, 1930, default was made in the payments of principal and

[180 N.E. 730]

interest then due on the mortgage. The unpaid balance of principal at this time was $8,950. Neither the note nor the mortgage provided that the balance of the debt should become due upon default in payment of any installment. On June 10, 1930, the premises were sold by the mortgagee for breach of the condition of the mortgage and purchased by her for the sum of $4,721. Prior to foreclosure notice was served upon all the defendants herein that the mortgage was about to be foreclosed, that the mortgagee would look to them for any deficiency and each of the defendants received a copy of the foreclosure advertisement and was informed of the time and place of sale. On June 17, 1930, the mortgagor executed a release under seal to the defendants Keating and Halnon, as executors, purporting to release and discharge the estate of Barrett from all rights that he then had or ever had against her on account of the assumption of the mortgage debt in question, and received a specified sum for such release, one-half of which was paid by the estate of Barrett and the other half by the Booth Realty Company, to which corporation Barrett had conveyed the premises in question at some time between March 13, 1928, and January 2, 1930.

The trial judge found that in executing this release the mortgagor intended to hinder and delay the...

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13 cases
  • Silverstein v. Saster
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 26 Febrero 1934
    ...v. Labrie, 206 Mass. 599, 92 N. E. 807,138 Am. St. Rep. 411;Codman v. Deland, 231 Mass. 344, 347, 121 N. E. 14;Bloch v. Budish, 279 Mass. 102, 180 N. E. 729. There is authority for the proposition that a mortgagee may ignore subsequent dealings with the property, and need not treat the mort......
  • Blumenthal v. Blumenthal
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 29 Mayo 1939 the claim. If the claim is not established, then the whole proceedings fail and the bill must be dismissed. Bloch v. Budish, 279 Mass. 102, 106, 180 N.E. 729;Westfield Savings Bank v. Leahey, 291 Mass. 473, 475, 197 N.E. 160. A bill to reach and apply has been referred to as an equitable......
  • Provident Inst. for Sav. in Town of Boston v. Merrill
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 26 Febrero 1942
    ...293, and cases cited. The bank could not enforce directly against Bradlee her undertaking with Merrill to pay this note. Bloch v. Budish, 279 Mass. 102, 180 N.E. 729;Silverstein v. Saster, 285 Mass. 453, 189 N.E. 540. Her relationship to the bank was entirely different from that of Merrill.......
  • Lynn Five Cents Sav. Bank v. Portnoy
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 3 Julio 1940
    ...Institution for Savings v. Kelil, 262 Mass. 302 . Starks v. O'Hara, 266 Mass. 310 . Costa v. Sardinha, 265 Mass. 319 . Bloch v. Budish, 279 Mass. 102 . The defendant had rights in addition to these she would have acquired by a conveyance of the land subject to the mortgage, and where she th......
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