Blunt v. Norris

• Decision Date: 03 July 1877
• Citation: 123 Mass. 55
• Parties: John G. Blunt v. Henry A. Norris
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 55

John G. Blunt v. Henry A. Norris

Supreme Court of Massachusetts

July 3, 1877

Argued March 27, 1876

Suffolk. Bill in equity for the assignment of a mortgage to the plaintiff, or that the same might be declared to be held in trust for him, and for an injunction to restrain the defendant fro transferring the same. The case was heard before Endicott, J., on the pleadings and a report of a master, and reserved for the determination of the full court and was as follows:

On or about January 31, 1872, George W. Gerrish executed a mortgage of land in Brighton to Samuel S. Jackson, a real estate broker of Boston, to secure the payment of a promissory note of $ 2500, of even date with the mortgage, payable to Jackson or order, and stating on its face that it was secured by mortgage of land in Brighton. The mortgage was duly recorded on February 12, 1872. The note and mortgage were given to Jackson, not in payment of, or to secure, any preexisting debt, nor did Gerrish, at the time or afterwards, receive anything thereon from Jackson, but they were to be negotiated by Jackson, for Gerrish, who wanted to raise money thereon.

On April 25, 1872, Jackson, being indebted to the plaintiff delivered to him, without the consent or knowledge of Gerrish, the mortgage note, without indorsement, to hold as collateral security for $ 1500. The plaintiff received the note in good faith, and Jackson paid him, semiannually, the interest on the $ 1500, and indorsed it on the note to July 31, 1875.

Shortly before July 1, 1872, Gerrish called at Jackson's office and was asked by his clerk to sign a note, so that Jackson could get the money for him. Gerrish said that he signed the note when he executed the mortgage, to which the clerk replied that Jackson said not. The clerk thereupon wrote a note similar to that described in the mortgage, and Gerrish signed it. Afterwards, about July 1, 1872, the defendant having agreed to lend Gerrish $ 2000 on the mortgage, Gerrish called at Jackson's office, and got from him the mortgage, and an assignment thereof, under seal, to the defendant, and the last named note, indorsed by Jackson, without recourse, and delivered them to the defendant, as collateral security for a note at three months for $ 2000; and the defendant accepted them in good faith, and not supposing that any one else had any claim on the mortgage. The defendant did not record the assignment of the mortgage to him until November 13, 1875. Neither the plaintiff nor the defendant has received the principal sum advanced by each respectively.

Bill dismissed.

R. D. Smith, for the plaintiff, to the point that the plaintiff was entitled to the relief sought, notwithstanding the fact that the note was not indorsed, cited King v. Harrington, 2 Aik. 33; Pratt v. Bank of Bennington, 10 Vt. 293.

W. A Herrick, for the defendant.

Ames J. Lord & Soule, JJ.,...