Clark v. Fontain

Decision Date10 September 1883
Citation135 Mass. 464
PartiesWilliam H. Clark v. Mary E. Fontain
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Argued November 21, 1882; November 20, 1878.

Suffolk. Bill in equity, filed March 23, 1878, to restrain the foreclosure of a mortgage of a parcel of land, and to compel the mortgagee to release the land from the mortgage. Hearing before Colt, J., who reported the following case for the consideration of the full court:

On November 7, 1870, Horace Sargent and Prentice Sargent, being the owners of a parcel of land in Boston, mortgaged the same to the defendant, by a deed recorded November 18, 1870, and containing the following clause: "The grantee, for herself, her heirs, executors, administrators and assigns hereby agrees with the grantors, their legal representatives and assigns, that she will release from time to time whenever requested, any portion or portions of said land . on being paid therefor at the following specified rates; viz. for upland . . . at the rate of fifty cents per foot, . . . and all sums so paid for releasing said land . . . shall be indorsed on the mortgage notes, . . . and be so much paid on the mortgage debt. Provided always that the mortgagee shall not be required to release under the foregoing provisions so as to impair this mortgage as security for the part of the mortgage debt remaining unpaid."

After the mortgage was given, the mortgagors divided the land into house-lots, and on January 14, 1873, conveyed to the plaintiff by a deed of warranty, which was recorded on January 15, 1873, one of said house-lots, containing twelve hundred feet, which lot is the one in regard to which the plaintiff seeks relief. On January 14, 1874, the mortgagors conveyed to Margaret Smith, by a deed of warranty recorded on March 14, 1874, another of said lots, also containing twelve hundred feet. Prior to either of these two deeds, the mortgagors had erected upon each of the two lots conveyed, which were upland, a dwelling-house of the value of $ 3000; and, at the date of the deed to the plaintiff, there was due upon said mortgage a sum not exceeding $ 2100.

The rest of the premises conveyed by the mortgage consists of vacant upland, the value of which does not exceed $ 1000, and which still remains in the hands of the mortgagors, who are insolvent.

The mortgage became due on November 7, 1876. At the time of the deeds to the plaintiff and Smith, the mortgagors did not disclose the fact of the existence of the mortgage, and neither the plaintiff nor Smith knew of such mortgage until March 4, 1878.

On March 2, 1878, the defendant advertised the whole of the estate described in said mortgage for sale on March 26, 1878, under the power of sale contained in said mortgage, there having been a breach of the condition thereof, and notified the plaintiff, Smith and the mortgagors of such proposed sale.

The plaintiff, hearing that Smith had demanded of the defendant a release of the Smith lot upon payment of fifty cents per foot therefor, notified both the defendant and Smith of his deed from the mortgagors, and protested against the Smith lot being released, unless the defendant first released the plaintiff's lot, or applied the full value of the Smith lot and said vacant land toward the payment of the mortgage. On March 14, 1878, after such notice and protest to the defendant and Smith, the defendant did release the Smith lot to Smith for the sum of six hundred dollars paid by him. At the time of such release, the fair market value of the Smith lot was $ 3500, and the value of the vacant land covered by said mortgage and never conveyed by the mortgagors was $ 1000, and the value of the plaintiff's lot was $ 3500.

In the deed of the Smith lot from the mortgagors to Smith, and in said release to Smith, the land is described as bounded "northeasterly by the estate of W. H. Clark, 60 feet."

The plaintiff contended that the defendant should be held to have received the full value of the Smith lot, or so much thereof as should be sufficient to pay said mortgage, or so much thereof as would, with the vacant land still held by the...

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20 cases
  • Silverstein v. Saster
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 26 Febrero 1934
    ...resulting from the mortgagor's subsequent transactions with third persons. George v. Wood, 9 Allen, 80, 82, 85 Am. Dec. 741;Clark v. Fontain, 135 Mass. 464;Clarke v. Cowan, 206 Mass. 252, 255, 256, 92 N. E. 474,138 Am. St. Rep. 388; Sheldon, Subrogation (2d Ed.) § 81. In North End Savings B......
  • Springfield State Bldg. Corp.. v. Massachusetts Mut. Life Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 30 Junio 1934
    ...at any time before there is a complete foreclosure of the mortgage, as the plaintiff contends. See Reed v. Jones, 133 Mass. 116;Clark v. Fontain, 135 Mass. 464;Id., 144 Mass. 287, 10 N. E. 831;Clarke v. Cowan, 206 Mass. 252, 92 N. E. 474,138 Am. St. Rep. 388;Harris Realty Co. v. Epstein, 26......
  • Charles Const. Co., Inc. v. Leisure Resources, Inc.
    • United States
    • Appeals Court of Massachusetts
    • 20 Febrero 1974
    ...Marshaling Assets and Securities § 11, and Anno. 110 A.L.R. 65. See also Parkman v. Welch, 19 Pick. 231, 238 (1837), and Clark v. Fontain, 135 Mass. 464, 466 (1883). Any other rule would be conductive to If the insurance companies had funded the escrow account without the Bank's authorizati......
  • Costa v. Sardinha
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 30 Noviembre 1928
    ...v. Vollinger, 174 Mass. 521, 523, 55 N. E. 458;George v. Wood, 9 Allen, 80, 82, 85 Am. Dec. 741;Id., 11 Allen, 41, 42. See Clark v. Fontain, 135 Mass. 464, 466;Converse v. Ware Savings Bank, 152 Mass. 407, 408, 25 N. E. 733;Bates v. Boston Elevated Railway, 187 Mass. 328, 340, 72 N. E. 1017......
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