O'Connell v. Everett

• Decision Date: 28 February 1931
• Citation: 274 Mass. 602,175 N.E. 44
• Parties: O'CONNELL v. EVERETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 602

175 N.E. 44

O'CONNELL

v.EVERETT.

Supreme Judicial Court of Massachusetts, Norfolk.

Feb. 28, 1931.

Appeal from Superior Court, Nortolk County; Edward T. Broadhurst, Judge.

Suit by John O'Connell against John Everett to set aside a mortgage and for other relief. From a decree in favor of the plaintiff, defendant appeals.

Decree affirmed.

John Everett, of Canton, for appellant.

G. W. Grover, of Boston, for appellee.

SANDERSON, J.

This is an appeal by the defendant from a flnal decree in favor of the plaintiff in a suit final decree in favor of the plaintiff in a suit The bill was filed September 1, 1926. The plaintiff alleged that he had no recollection of executing the mortgage or note, denied receivingany consideration therefor and also denied any indebtedness to the defendant.

John O'Connell, father of the plaintiff, when he died in 1898, was the owner of four parcels of land in Canton which by his will he devised to the plaintiff upon condition that the latter would pay and assume all the testator's indebtedness except a mortgage on specified property. The defendant drew the will and presented it for probate. On March 16, 1899, the plaintiff executed to Elizabeth M. B. Everett, mother of the defendant, a mortgage in the sum of $4,000 covering these several parcels of real estate to secure advances to be made to pay the debts and expenses referred to in the will of the plaintiff's father. This mortgage was duly recorded in March, 1899. We are bound by the finding of the master appointed in the case that the payments and advances secured by this mortgage amounted to $566.09. None of these appear to have been made after March, 1902. The mortgage was written to run for one year, but no payment was made thereon to the mortgagee or to the defendant up to the date of her death in 1902. Her will was proved and allowed in 1903. The defendant was entitled to the residue of her property. The inventory of her estate contained an item purporting to be ‘mortgages and interest not in default,’ but it contained no item of this overdue mortgage. The master was unable to find whether the defendant considered the mortgage to be part of the assets of her estate. The defendant's contention was that the mortgage and note were assigned at the request of his mother to the defendant's niece in 1926. No such assignment appears of record, but the master found that the title to the mortgage is held as a part of the estate of this niece, having been assigned by the defendant as executor; he was unable to find that any note to be secured by it was given. He found that the mortgage was in the letter box of the defendant after the evidence was presented at a former hearing before a master, since deceased; and that no evidence was introduced to show how or when the mortgage was placed therein. The defendant sought to prove that payments had been credited on the mortgage within twenty years before the entry to foreclose, but the master found that such credits had not been made. The master found that the plaintiff had from the date of the mortgage to November 5, 1925, used the land described therein openly, adversely, continuously and under a claim of right, and been in uninterrupted possession thereof; that he had at no time recognized the mortgage and the defendant had not demanded payment. On November 5, 1925, the defendant made an entry to foreclose the mortgage. At that time he was not the holder or owner of the mortgage, nor was he acting as attorney in fact or under a written instrument, and title was not then vested in him by assignment or otherwise. By the terms of the final decree the mortgage was decided to be no longer a lien upon the premises and the defendant and all persons claiming by, from and under him were enjoined from collecting any money upon it and from seeking to foreclose the same; the defendant was further ordered to execute and deliver to the plaintiff within thirty days...