Bremer v. Columbian Nat. Life Ins. Co.

• Decision Date: 16 June 1908
• Parties: BREMER v. COLUMBIAN NAT. LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 344

85 N.E. 439

BREMER v. COLUMBIAN NAT. LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 16, 1908

COUNSEL

Hallowell & Hammond, for appellant.

Clifton L. Bremer, pro se.

OPINION

BRALEY J.

In Bremer v. Hadley, 196 Mass. 217, 81 N.E. 961, the authority of the trustee either to sell the property held in trust under the will of Francis W. Sayles, or to change the investments, was carefully considered. Because of the language used by the testator it was held that the trustee was not empowered to convert the estate from one form of security into another, unless authorized by decree under the provisions of Rev. Laws, c 147, § 15, as amended by St. 1907, p. 206, c. 262, § 1. The plaintiff claims, that the present case is governed by that decision. Before deciding the question, it becomes requisite to ascertain the substantially undisputed facts, involved in the transaction which the bill asks to have set aside. The plaintiff's predecessor, Berry, found among the investments made by a former trustee, a promissory note secured by a mortgage of real estate, given by one Arnold. When Berry succeeded to the trusteeship the note was overdue but the interest continued to be paid regularly for nearly six years after maturity by Julia Freidberg, the surviving owner of the equity of redemption, who with her husband had acquired title as tenant by the entirety shortly after the mortgage was given. The trustee having demanded payment of the principal, she applied to the defendant for a loan to enable her to take up the mortgage. But while the application was granted, an examination of the title disclosed that a second mortgage had been given, which was still outstanding. To avoid any question as to priority of title which might arise if the first mortgage was discharged when the parties met to pass the papers, the trustee without any previous arrangement between himself and the defendant, upon receiving payment, executed and delivered an assignment, instead of a discharge, accompanied with a transfer of the note without recourse. The mortgage thereupon was extended for a period of five years, under an agreement by which she became personally bound to the defendant to pay the debt. During the negotiations, there does not appear to have been any proposition, from either the trustee or the company, that he should sell, and it should buy, the mortgage, but the object which the borrower and lender mutually sought to accomplish was this: An amount sufficient to take up the outstanding mortgage, after the partial payment had been made, was to be lent by the defendant upon the distinct understanding that the loan was to be secured by a mortgage upon her real estate. When, however, the condition of the title had been ascertained, as a matter of precaution on the part of counsel intrusted with the conveyancing, and under their advice, the old mortgage was assigned with an agreement of extension, instead of being discharged, and a new mortgage taken. It is evident that the...