Corbett v. Gallagher

• Citation: 225 Mass. 480,114 N.E. 751
• Parties: CORBETT et al. v. GALLAGHER.
• Decision Date: 05 January 1917
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 480

114 N.E. 751

CORBETT et al.

v.GALLAGHER.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 5, 1917.

Appeal from Superior Court, Suffolk County; William Cushing Wait, Judge.

Suit by Peter Corbett and others against Charles T. Gallagher. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Letter of April 14, 1908, from Fred A. Fernald, defendant's attorney and agent, to Peter B. Corbett, as set out in the amended bill, is as follows:

‘In accordance with your suggestion that you give deeds of the equities and thereby save the expense and publicity attendant upon foreclosure closure sales of the various properties of yours in South Boston, of which we took possession on April 2nd, 1908, we have finally decided that probably it would be well for such deeds to be made for the property at 440 Fourth Street, 321-5 Broadway, and 198 Silver Street. We will then see what can be done with the property and whatever we can net at private sales or otherwise we will credit to the account of the various mortgages and the accumulation of interest and expenses thereon.’

Thos.

H. Mahony, of Boston, for appellants.

Geo. W. Anderson and Morrill A. Gallagher, both of Boston, for appellee.

DE COURCY, J.

In substance the allegations of the original bill were as follows: That in April 1908, Mary F. Corbett, under whom the plaintiffs claim, was the owner of two parcels of land in Boston; that the defendant holding a second mortgage thereon for $2,500, which was due and payable, made an entry to foreclose and thereaftened to make sale; that the plaintiff Peter B. Corbett, acting for his wife Mary F., orally agreed with the defendant that the latter should take possession of the property, collect the rents and apply them to his mortgage; should pay the taxes and interest on the first mortgages; pay off the first mortgages in the event of foreclosure thereof being started; and if an offer of purchase should be made acceptable to said Mary F. Corbett or her husband, he should sell the property and pay to said Mary F., the balance of the proceeds after satisfying his own claim. It further alleged that Mrs. Corbett, pursuant to such agreement, gave the defendant a deed of the property; that he collected the rents until October 1912, and then sold the premises without the knowledge of the plaintiffs, and refused to account to them for the proceeds.

The court sustained the defendant's demurrer, and allowed the plaintiffs ten days in which to amend. Later the motion to amend was denied, on the ground that it did not ‘remove the valid grounds of demurrer already sustained,’ and the bill was dismissed. The proper practice would have been to allow the amendment and file the demurrer anew; but as the parties have...