Codman v. Deland

• Decision Date: 27 November 1918
• Citation: 231 Mass. 344,121 N.E. 14
• Parties: CODMAN v. DELAND et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 344

121 N.E. 14

CODMAN

v.DELAND et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 27, 1918.

Report from Superior Court, Suffolk County; Jabez Fox, Judge.

Suit to collect the balance due on a mortgage debt by Edmund D. Codman against Lorin F. Deland and others, resulting in dismissal of the bill. On report to the Supreme Judicial Court. Order dismissing the bill approved, and decree directed accordingly.

Wm. P. Evarts, of Boston, for plaintiff.

Felix Rackemann and Harrison M. Davis, both of Boston, for defendants.

RUGG, C. J.

The defendant, in his capacity as trustee, in 1905 executed a note for $17,000 payable in three years to the plaintiff, which was secured by a mortgage upon real estate in Boston. Before the maturity of the note the mortgagor conveyed the real estate to one Miller by deed referring to the mortgage, which the grantee therein agreed to assume and pay. The defendant as mortgagor straightway thereafter notified the plaintiff as mortgagee by letter of the sale and of the assumption of the mortgage by the grantee. When the note matured, the mortgagee advised the grantee that, if she desired an extension, $2,000 must be paid on the principal and the rate of interest would be increased. A formal extension agreement under seal was signed by both parties, wherein the mortgagee agreed to extend the time for the payment of the principal for three years until 1911, and the grantee agreed to pay the principal at that time and to pay the increased rate of interest. The grantee did not pay the principal, or pay the interest, or the taxes after 1914. In 1916 the mortgagee foreclosed the mortgage and received for the sale of the real estate $11,000. This was its fair market value, it having depreciated markedly since 1908. This suit is brought to recover from the mortgagor the balance due upon the note.

The judge has found that the agreement for extension was executed by both the mortgagee and the grantee and went into effect on its execution. This finding cannot be reversed and must stand. It appears that the agreement for extension was drafted in duplicate, each copy identical with the other except that the acknowledgment clause upon one was in form for the grantee and upon the other for the mortgagee. They were drafted by the attorney for the grantee and submitted to the mortgagee, who approved their form. Both then were signed by the grantee, but neither were acknowledged by her because of illness. Both then were signed by the mortgagee, whose acknowledgment was taken and certified upon the one designed for that purpose, and he then returned both copies to the attorney for the grantee. That attorney tried to get her acknowledgment and wrote her several times to come to his office for that purpose. She never came, afterwards left Boston, and is reported to be in Austria. The clerk of the mortgagee endeavored repeatedly to get one copy of the agreement with the acknowledgment of the grantee, and was informed that the papers were mislaid or lost. Both copies remained in the possession of the attorney of the grantee.

These facts and the inferences which reasonably may be drawn therefrom warrant the conclusion that the agreement for extension was executed by both parties thereto without condition and was delivered. The circumstance that the copy of the agreement intended to be kept by the mortgagee was not acknowledged by the grantee is not decisive. Acknowledgment was not necessary to its validity. Both copies were signed by each party. Apparently the delivery was absolute. There is nothing in the record which required a finding or ruling...