Catherine Carlton v. Abraham Jackson &Amp; Others

• Decision Date: 31 January 1877
• Citation: 121 Mass. 592
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Catherine Carlton v. Abraham Jackson & others

121 Mass. 592

Catherine Carlton v. Abraham Jackson & others

Supreme Court of Massachusetts

January 31, 1877

[Syllabus Material]

Middlesex. Bill in equity against Abraham Jackson, the assignees in bankruptcy of Jackson, and the Franklin Insurance Company for the conveyance of land in Cambridge. Hearing before Devens, J., who reported the case for the consideration of the full court, in substance as follows:

Catherine and Sarah Ann McCaffrey, being seised of the land in question, mortgaged the same to the North End Savings Bank on November 4, 1870, to secure the payment of $ 2700 in three years from that date, with interest, payable semi-annually at the rate of seven per cent. per annum, and afterwards mortgaged the same to Oliver Hastings to secure the payment of $ 500 and interest. Afterwards they proposed to sell the land by public auction, and the plaintiff, desiring to become the purchaser, and having no means except a mortgage for $ 1000, due to her from the defendant Jackson, sought his advice in the matter, the result of which was that he agreed to purchase the estate and convey it to the plaintiff, on payment by her of all that he should expend on account of the estate, with interest. Accordingly, at the auction sale, which was on or about June 4, 1872, the land was bid off by James McCaffrey, a son in law of the plaintiff, for the sum of $ 4950, and Catherine and Sarah conveyed the same to him by common warranty deed, dated June 4, 1872, subject to the two mortgages, the deed containing the following clause: "Both said mortgages the grantee is to assume and pay, the same being a part of the above-named consideration." James McCaffrey conveyed the same to Jackson by deed of release and quitclaim, without covenants, and not mentioning any incumbrance, bearing date July 2, 1872. The deed to McCaffrey, and his deed to Jackson, were delivered at the same time, and Jackson paid the whole of the purchase money, over and above the amount of the mortgages, directly to Catherine and Sarah McCaffrey. In February, 1873, Jackson paid to Hastings the whole amount due him on his mortgage, and Hastings then discharged it. The mortgage to the North End Savings Bank became payable on or about November 4, 1873, and Jackson, on December 15, 1873, paid to the Savings Bank the principal and interest then due thereon, amounting in the whole to $ 2851.43, and thereupon the savings bank assigned to Jackson the mortgage aforesaid and debt secured thereby, by deed bearing date December 12, 1873. At that time, Jackson owed a debt due on demand to the Franklin Insurance Company, for which the company held, besides other collateral security, a mortgage made by one Carpenter, which was originally taken under the belief that it was a first mortgage, but was in fact a second mortgage, on discovering which the company called upon Jackson for further security, and he thereupon, on December 16, 1873, by deed of that date, assigned to the company the mortgage and note to the North End Savings Bank, to be held as security for his loan. The securities held by the Franklin Insurance Company are still insufficient to secure Jackson's debt. After his purchase of the land in question, Jackson permitted the plaintiff to let the same and collect the rents, a part of which she paid over to him, taking his receipts therefor. In 1873, the plaintiff discharged the mortgage which she held against Jackson, and delivered to him the mortgage note, and he then gave her a receipt for the amount due on account of the purchase of the land. Over and above the amount paid by Jackson to the North End Savings Bank on December 15, 1873, and interest thereon, there was due from the plaintiff on account of the purchase of the land, to the assignees of said Jackson, the sum of $ 1327.50, and the assignees of Jackson, since they have been in possession of the real estate, have received rents thereof, amounting in the whole to $ 77.50.

The assignees of Jackson admitted the right of the plaintiff to a conveyance of the land in question, but contended that they should be paid the amount paid by Jackson to the North End Savings Bank, on December 15, 1873, on account of the mortgage held by the Franklin Insurance Company, upon the ground that the mortgage was merged, and that the assignment to the Franklin Insurance Company was void.

The judge was of opinion that, as between the defendants, the Franklin Insurance Company was entitled to receive the amount of the mortgage debt and interest from the plaintiff, and that the plaintiff was not entitled to the...