Cheffee v. Geageah

• Decision Date: 23 November 1925
• Citation: 253 Mass. 586,149 N.E. 620
• Parties: CHEFFEE v. GEAGEAH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 586

149 N.E. 620

CHEFFEE

v.GEAGEAH.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 23, 1925.

Appeal from Land Court, Bristol County; C. C. Smith, Judge.

Writ of entry by Leland W. Cheffee against Mary S. Joseph Geageah to recover two parcels of land. Judgment for tenant, and demandant appeals. Affirmed.

Demandant requested the following rulings:

I. That when the equity of redemption became vested in the owner of the mortgage there was a merger of the mortgage and the mortgage was extinguished if there was a purpose or intent of uniting the two so that a free title could have been given to Whitehouse.

II. That the purpose to have the various interests both of the owner of the mortgage and the owner of the equity of redemption for the purpose of enabling Samuel J. Greene to convey a full title as to third persons who had no notice of any other arrangement made a merger of the interest.

III. That when a mortgage is merged by the securing of the equity of redemption and the mortgages on the same property by the same owner, and that once merged, it cannot be revived by the act of the then owner reconveying subject to such mortgage which has been once merged.

Requests I and II were refused.

R. P. & L. H. Coughlin, of Taunton, for appellant.

S. P. Hall, of Taunton, for appellee.

CROSBY, J.

This is a writ of entry brought to recover two parcels of land. A judge of the land court found for the tenant. The case is before us on an appeal by the demandant from that finding and from certain rulings given and refused by the court. The findings so far as material may be summarized as follows:

On March 9, 1900, one Lydia A. Herbert, who was the owner of the two parcels of land described in the writ, gave to Leander R. Peck, a mortgage for $1,700; on November 15, 1906, she gave him a second mortgage on the same parcels for $1,300; and on March 16, 1907, a third mortgage for $500. All were payable in one year from date and were duly recorded. None of them having been paid, Frederick S. Peck, an executor of the will of the mortgagee, in 1912, demanded payment thereof by Mrs. Herbert. It was finally agreed that she should execute a deed of the lands covered by the mortgages to one Greene, an agent of Peck, and that the grantee should consummate a proposed sale of a part of the premises to one Whitehouse, and then reconvey the balance of the land to Mrs. Herbert discharged of the mortgages. On May 9, 1912, she executed a deed to Greene in accordance with the agreement and he took title on the oral trust so created; and on May 13, 1912, he received from the executors of Leander R. Peck assignments of the three mortgages. The sale to Whitehouse was never consummated.

On or about July 24, 1912, Mrs. Herbert brought a bill in equity in the superior court in Phode Island against the executors and Greene, in which she prayed that upon paymentof the sum found to be due on the mortgages the lands be reconveyed to her. A decree was entered stating that Greene held the equity of redemption in the lands as trustee for Mrs. Herbert and her husband, and there was due on the mortgages the sum of $4,866.25; and ordering Greene to convey the lands to the Herberts subject to the mortgages. In compliance with the decree, a deed dated July 30, 1914, was executed by Greene to the Herberts subject to said mortgages. This deed was duly recorded on August 8, 1914. The deed contained the following recital: ‘* * * The above described premises are subject to three mortgages.’ Then followed a description of the mortgages. The deed did not refer to the decree, and no notice of the suit was recorded.

On October 16, 1914, Greene, as assignee of the third mortgage, foreclosed it and sold the lands at public auction to the tenant in this case under the power of sale contained therein. The deed was recorded on October 24, 1914. The tenant has been in possession claiming under the deed since February 1915. The demandant claims title under a sheriff's deed which purports to convey to him all the title and interest which Lydia A. Herbert had in the premises on February 10, 1923. The deed was given by virtue of a sale on an execution issued from a district court on a judgment recovered March 2, 1923, in a suit brought by the demandant against Mrs. Herbert. ‘No evidence of the jurisdiction of the Court was offered, or of the return of said execution into Court with a certificate of the officer's service.’

[1] It is the contention of the demandant that there was a merger of the title in Greene; that when he reconveyed to Mrs. Herbert she took the lands free from the...