Clark, Adm'r v. Clough

• Decision Date: 01 June 1883
• Citation: 65 N.H. 43,23 A. 526
• Court: New Hampshire Supreme Court
• Parties: Clark, Adm'r v. Clough & a., Tr's

23 A. 526

65 N.H. 43

Clark, Adm'r v. Clough & a., Tr's

Supreme Court of New Hampshire

June 1, 1883

SYLLABUS

Bill in Equity, for an accounting, and for the discharge of certain mortgages, by Moses Fellows, since deceased, against Clough and Foster, as executors of Herman Foster, or as trustees under his will, and certain other persons interested in his estate. The defendants, Clough and Foster, having filed an answer, the cause was sent to a master, who reported as follows:

Herman Foster died February 17, 1875. He left a will, in which John Foster and Lucien B. Clough were named as executors and trustees, -- the will providing that the trustees and the survivor of them should hold what remained, after paying certain legacies, in trust, to pay over the income to his wife during her life, with power to sell the real estate with her consent. The executors named accepted the trust, and on the 27th day of February, 1877, filed their account as such executors. The following day they filed their bond as trustees. Among the property that came into their hands as trustees was a parcel of real estate located upon Elm street in Manchester, which was appraised at $ 55,000, and which was called the Merrimack block.

This bill in equity was brought by Moses Fellows, November 3,1877 against said John Foster and Clough, and all other persons who had any interest under said will.

Moses Fellows died September 25, 1879, and Joseph B. Clark was appointed administrator of his estate, and assumed the prosecution of this suit.

It was proved that Moses Fellows once owned the land and buildings known as Merrimack block, which covered lots 293-296 inclusive, as designated in the original laying out, except a part of lot No. 293. He also owned a part of lots 291 and 292. It was proved by record evidence that Fellows mortgaged lots 295 and 296 to the Amoskeag Manufacturing Company September 26, 1844; that the company brought a writ of entry at common law against Fellows, upon the mortgage, October 11, 1851, and recovered conditional judgment November 22, 1851, for $ 601.81 debt and $ 10.88 costs; that the mortgage and judgment were assigned, January 30, 1852, to Herman Foster, for the consideration of $ 608.62; that said Foster, as assignee, was put in possession by an officer, upon a writ of possession, August 30, 1854. It was further proved by record evidence that Moses Fellows mortgaged to Joseph S. Lund, August 4, 1845, lots 295 and 296, and so much of lot No. 293 as he owned. September 3, 1852, Lund assigned the mortgage to E. J. M. Hale for the consideration of $ 2,131.25, the balance then due upon it. Said mortgage was never foreclosed.

It was further proved, by record evidence, that Fellows, September 9, 1846, mortgaged to George K. Montgomery lots 295 and 296, five feet in width, on the south side of lot No. 294, and so much of lot No. 293 as he owned; that January 15, 1847, Montgomery assigned the mortgage to E. J. M. Hale; that April 5, 1852, Hale brought a writ of entry upon the mortgage against Fellows, and May 8, 1852, recovered conditional judgment for $ 13,877.83 debt, and $ 11.13 costs; that October 29, 1852, a writ of possession was issued, and that, January 13, 1853, Hale was put in possession upon the writ by an officer. October 15, 1853, Hale assigned the Montgomery mortgage and judgment, and the Lund mortgage, previously assigned to him, to Herman Foster, for the consideration of $ 17,210.87, of which sum $ 5,210.87 was paid in cash, $ 2,000 by a note payable in one year, and the remaining $ 10,000 by a note payable in ten years. By a deed bearing date January 16, 1854, but acknowledged January 24, 1854, Hale quitclaimed all his interest in the property covered by the Lund and Montgomery mortgages to Herman Foster.

It was further proved, by record evidence, that Fellows executed to the city of Manchester a mortgage bearing date September 20, 1851, which covered lots 294, 295, 296, all that Fellows owned of lot No. 293, and also so much of lots 291 and 292 as he owned. January 13, 1852, the city assigned said mortgage to J. T. P. Hunt; March 22, 1852, Hunt brought a writ of entry upon the mortgage, and May 8, 1852, recovered conditional judgment for $ 2,698.80 debt and $ 6.88 costs. April 29, 1853, Hunt assigned the mortgage and judgment to Isaac Tompkins, and May 13 Tompkins assigned the mortgage and judgment to Herman Foster. A writ of possession issued upon said judgment November 8, 1853, which was served January 30, 1854. By request of counsel for the plaintiffs, the return is set forth in full, which is as follows:

"Hillsborough, ss. January 30, 1854.

"I have caused the within named Jonathan T. P. Hunt to have full seizin and possession of the premises within described, as within commanded, by delivering the same to Herman Foster, Esquire, Attorney and Assignee. "Mace Moulton, D. Sheriff."

The counsel for the plaintiffs claimed that the service of this writ was ineffectual for the purpose of a foreclosure, upon the ground that Foster was in actual possession of the property mortgaged before the date of this return, and requests that the facts bearing upon this point be reported. I find that, January 17, 1852, Fellows assigned the rents to Isaac Tompkins, who agreed to account to him for them; that Tompkins collected the rents of the whole premises owned by Fellows down to and including January 1, 1853; that from that time the rents accruing from the premises covered by the Montgomery and Lund mortgages were collected by Hale until he assigned said mortgages to Herman Foster, and the rents accruing from the balance of the premises were collected by Tompkins down to and including December 1, 1853; that all of the rents were, in fact, collected by Foster, or by the firm of which he was a member, as attorneys, and accounted for to the parties to whom they belonged, as above stated; that Foster continued to occupy the premises always, down to his death, renting them, collecting the rents, and treating them as his own property; and there is no evidence that he ever accounted for any rents collected by him, except as above stated, or that any claims were ever made upon him for said rents. No question was made that all of said mortgages were for a valuable consideration, and that the sums purporting to be due upon them were actually due; but the plaintiffs' counsel claim that the mortgage of the Amoskeag Manufacturing Company was paid by Fellows. The referee finds that Isaac Tompkins paid to Foster, as Hale's attorney, from the rents due November 1, 1852, from the property covered by the mortgages then held by Hale, and upon one of which a writ of possession issued October 29, 1852, $ 142.50, the payment being made November 4, 1852; from the same source, from the rents due December 1, $ 150; from the rents due January 1, 1853, $ 150; that Foster, as Hale's attorney, collected the rents due February 1, 1853, $ 150.66; that February 10, 1853, a settlement was made between Foster and said Hale, in which Foster accounted to Hale for said sums by passing over to him said note and mortgage, and receiving Hale's due-bill for the balance then remaining due upon said mortgage, amounting to $ 61.09, which was subsequently cancelled by applying the rents collected by Foster for Hale to its payment. Receipts were given for said sums of $ 142.50, $ 150, and $ 150, agreeing to apply them upon the Lund mortgage, but they were never so applied. I find it probable, there being no direct evidence upon the point, that Hale forbore to have his writ of possession served as soon as obtained, upon the agreement that the rents of the premises covered by it should be paid over and applied to extinguish the mortgages upon them.

It was further proved, by record evidence, that on September 22, 1851, Fellows executed a mortgage, called at the hearing the surety mortgage, to Ira Clough, John D. Riddle, Jonas Harvey, Jr., Benjamin Mitchell, Isaac Tompkins, David Webster, Gilman Harvey, Amos G. Gale, and Reuben White, to secure each of them for endorsing certain negotiable paper described in said mortgage, at the request of said Fellows. Said mortgage covered Fellows's interest in lots 291-296 inclusive, and also the homestead of Fellows at Goffe's Falls.

Ira Clough, by deed dated March 20, 1854, assigned all his interest in said mortgage for the consideration, as expressed in the assignment, of $ 3,161.22. David Webster made a like assignment, under date of April 4, 1859, for the consideration of $ 1,000, the debt being stated as amounting to $ 1,244.66, May 7, 1857, as determined by a judgment which was included; John D. Riddle, under date of February 9, 1853 for the consideration of $ 1,106.51; Benjamin Mitchell, under date of September 20, 1853, for the consideration of $ 1,033.29; Isaac Tompkins, under date of June 10, 1853, for the consideration of $ 2,499.52; and Gilman Harvey, under date of July 12, 1853, for the consideration of 1,207.43. The several parties named covenanted, in their several deeds of assignment, that the sums named as the consideration of said assignments were actually due them by reason of payments made by them upon said negotiable securities endorsed by them. No foreclosure of the mortgage upon the Merrimack block was ever attempted. December 16, 1865, Foster sued out a writ of entry upon the mortgage, against Fellows, to recover possession of his homestead at Goffe's Falls. December 18, 1865, Fellows acknowledged service of the writ. Fellows and Foster, by an agreement in writing, entitled as of the January term, 1866, stipulated that judgment be entered upon the writ, as of mortgage, for $ 17,544.05 debt, due February 14, 1866, and costs amounting to $ 7.20. The amount of the debt was made up by taking the amounts...