Cardoza v. Leveroni
| Decision Date | 25 June 1919 |
| Parties | CARDOZA et al. v. LEVERONI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County.
Suit by Matthew E. Cardoza and another against Frank Leveroni, administrator. From decree dismissing the bill, complainants appeal. Affirmed.
William H. Lewis and Isidore H. Fox, both of Boston, for appellants.
Samuel L. Bailen and Frank Leveroni, both of Boston, for appellee.
The defendant's intestate, Mary De Castro, was the owner of a mortgage on the real estate of the complainant, Matthew E. Cardoza. The bill alleges that she made a gift to the complainant ‘of the balance then remaining unpaid on the mortgage.’ The plaintiffs seek to restrain the defendant from foreclosing this mortgage, which matured three years after its date, and while held by Miss De Castro was twice renewed. The mortgagor paid the interest to Mary Cass, an agent of the mortgagee, and made the last interest payment on October 14, 1914. On this date Cardoza delivered to Miss De Castro a policy of insurance in the sum of $3,000, payable to the mortgagee as her interest may appear. On the following day Miss De Castro signed and delivered to Miss Cass an assignment of the mortgage and an order on the Cardozas to pay her the interest and principal of the mortgage when due. The order and assignment were executed solely for the purpose of authorizing Miss Cass to collect the interest or principal which Miss De Castro might demand of the mortgagor.
The master found that when these instruments were signed Miss De Castro was ‘undecided as to whether or not she would ask the Cardozas to pay anything further toward the balance then remaining due on the mortgage, but felt that they should pay at least $500, in order to entitle them to a release from all further obligation thereunder, and so expressed herself to Miss Cass'; that in November of the same year, when Miss Cass asked Miss De Castro what, if anything, she was to do with the Cardoza mortgage, Miss De Castro ‘replied by the single word, ‘Wait”; that after the papers were signed, Miss De Castro began to regret her action and to distrust Miss Cass; that she became hostile to her and this hostility lasted until the death of Miss De Castro, although ‘Miss Cass at no time did anything to justify the attitude which Miss De Castro adopted toward her.’
As soon as Miss De Castro began to distrust Miss Cass she decided to make a gift of the mortgage to the Cardozas. On or about October 21, 1914, she told them:
‘That she was not going to renew the mortgage which was then overdue because they had paid enough; she also informed them that at her last interview with Mary Cass she had told her that it was no more than right to leave the mortgage to the Cardozas.’
In March, 1915, Cardoza told Miss De Castro that interest would be due the following April, to which she replied:
‘I told you the last time I was here that I was going to discharge the mortgage to you because I considered that mortgage paid by you, that you had paid enough, and don't you go down to Mary Cass to pay any money at all.’
Subsequently, on one or two occasions, she said she considered the mortgage paid and intended to give it to the Cardozas. A few days before she died, in February, 1917, she requested Cardoza to call and see her on a matter of business and expressed much displeasure at his failure to respond. No interest was paid or demanded after October 14, 1914. The master found that Miss De Castro considered the mortgage paid and intended to deliver the note and mortgage to the petitioners; but that no delivery or assignment of the mortgage was made, the mortgage remained undischarged of record, the note and mortgage were in the possession of Miss Cass until the death of Miss De Castro, and no request was made to deliver them.
From the master's findings it is clear that Miss De Castro intended to absolve the Cardozas from further...
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