Depon v. Shawye
| Decision Date | 04 April 1928 |
| Parties | DEPON v. SHAWYE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Morton, Judge.
Bill for review of a decree by Deb Depon against Scayea Shawye and another. From an order sustaining a demurrer, plaintiff appeals. Affirmed.
H. Wise, of Boston, for appellant.
M. Hurd and R. M. Gardiner, both of Boston, for appellee Shawye.
The plaintiff brought this bill for review of a decree entered in the Superior Court upon a bill in equity filed by the defendant, Shawye, against him and one Hamway. That decree recited that Shawye was owner of certain premises in Brockton subject only to a mortgage held by the Peoples Savings Bank of Brockton; that a foreclosure sale of said premises, held January 22, 1925, by virtue of the power of sale contained in a mortgage dated October 15, 1921, from Shawye to Hamway was null and void; that mortgagee's deed from Hamway to Depon, dated January 22, 1925, was null and void; that a peaceable entry made on the premises for the purpose of foreclosure and the record thereof were null and void; that Shawye was entitled to redeem from the mortgage dated October 15, 1921, and on October 15, 1923, the due date, tendered the amount justly due; that it ordered Hamway to discharge and cancel that mortgage of record by a proper instrument of discharge. It further ordered execution to issue against the present plaintiff Depon, then the codefendant, in an amount recited to be the balance after deducting from rents received by him from the premises less his disbursements and the sum of $136, the balance due as principal and interest on said mortgage dated October 15, 1921; ordered Depon to surrender possession of the premises to Shawye, and to surrender, deliver up and cancel the mortgage deed, to sign, execute, acknowledge and deliver a discharge of that mortgage and to sign, execute, acknowledge and deliver a deed or other proper instrument to release all interest acquired by him by virtue of that deed. It decreed further that the mortgage and the mortgagee's deed under the power of sale should no longer be liens upon the premises against Shawye or any one claiming under her, and that Hamway, Depon, and all persons claiming under either or both are debarred and enjoined perpetually from collecting upon either and from setting them up against the premises. It further ordered a trustee, who had been by stipulation appointed to receive and hold rents and profits pending an appeal, to pay over a fixed sum to Shawye, and it awarded costs in a fixed sum. This court, by rescript entered October 18, 1926, dismissed an appeal from the decree because the plaintiff failed to enter it seasonably.
The bill of review recited the earlier proceedings and alleged that error appeared on the face of the record because it nowhere showed that there had been any compliance by Shawye with G. L. c. 244, § 21, or that Shawye had paid into court the amount due on the mortgage or had obtained an injunction restraining the foreclosure sale in accord with G. L. c. 244, § 22, or that Depon had acted fraudulently. The defendant demurred. The Superior Court sustained the demurrer, and the plaintiff appealed. The grounds of demurrer were lack of equity, resjudicata, multifariousness, that the matters set out were not subject to review, and that a bill of review will not lie where a final decree after rescript in form prescribed by the court has been entered after the Supreme Judicial Court has dismissed an appeal for want of seasonable prosecution.
The plaintiff's bill is bad because it discloses no error of law and because it shows no equity. The plaintiff purchased for value at a foreclosure sale, held January 22, 1925, which was perfect in its compliance with formal requisites for such a sale. The fatal defects were, that the mortgagee's title had come to an end on October 15, 1923; that he had no power to sell when he attempted to do so in January, 1925; and that the plaintiff had notice of these facts.
A mortgage deed conveys a title determinable on a condition subsequent. Erskine v. Townsend, 2 Mass. 493, 3 Am. Dec. 71. If the condition is performed, the estate of the mortgagee ends. If it is not performed, then the estate continues but, by force of law, is for a time...
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