Dennett v. Codman

• Decision Date: 21 May 1897
• Citation: 168 Mass. 428,47 N.E. 131
• Parties: DENNETT et al. v. CODMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 428

47 N.E. 131

DENNETT et al. v. CODMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1897

Action of tort by Herbert E. Dennett and another against Edmund C. Codman and others. At the trial, plaintiffs relied exclusively upon the counts which alleged a conspiracy of defendants to defraud plaintiffs out of a parcel of land and to fraudulently foreclose a mortgage of plaintiffs' land; plaintiffs abandoning all claim to maintain their action on the count for slander of title. Plaintiffs offered in evidence the record of the supreme judicial court in a case in equity in which the same parties were, respectively plaintiffs and defendants, excepting Robert Codman, Jr., who was not a party in the equity proceedings. Plaintiffs' bill in the equity proceedings alleged fraud and negligence in conducting a foreclosure sale of the same land under the power in the same mortgage. In order to show that the decree in the equity suit was based upon the findings of fact by the court favorable to plaintiffs' contentions in the case at bar, plaintiffs offered in evidence said memorandum of decision filed with the papers in said equity proceeding, and entered on the docket as filed; but the court ruled that said memorandum was incompetent, and declined to allow the same to be read to the jury, to which ruling and to the exclusion of said memorandum the plaintiffs excepted. In addition to said record the plaintiffs offered other evidence. At the close of the plaintiffs' evidence, on motion of defendants, the court ruled that this action could not be maintained on the plaintiffs' evidence, and directed a verdict for the defendants, to which ruling plaintiffs excepted. Exceptions overruled.

COUNSEL

M.L Sanborn, for plaintiffs.

C.K Cobb, for defendants Edmund D. Codman and Robert Codman, Jr. Moorfield Storey, for other defendants.

OPINION

KNOWLTON J.

The plaintiffs abandoned their counts for slander of title, and left the case to stand on their allegations of conspiracy to deprive them of a parcel of land, and fraudulently to foreclose a mortgage upon it. There is no evidence that the defendants, or either of them, did anything that they had not a right to do, or that they resorted to any illegal means to do anything, unless it be in the foreclosure of the mortgage under the power of sale. If we assume, in favor of the plaintiffs, that the jury might have found such negligence or misconduct on the part of the defendants in making the...