Dobias v. Faldyn

• Decision Date: 31 December 1931
• Citation: 179 N.E. 219,278 Mass. 52
• Parties: DOBIAS et al. v. FALDYN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 52

179 N.E. 219

DOBIAS et al.

v.FALDYN.

Supreme Judicial Court of Massachusetts, Franklin.

Dec. 31, 1931.

Appeal from Superior Court, Franklin County; Whiting, Judge.

Suit by John Dobias and others against Joseph Faldyn, executor of will of Barbara Faldyn Muzik. From a final decree confirming report of the master finding for plaintiff, defendant appeals.

Modified, and, as modified, affirmed.

W. L. Davenport, of Greenfield, for appellant.

H. E. Ward, of Greenfield, for appellees.

FIELD, J.

This is a suit in equity. The plaintiffs are John Dobias, senior, his son John Dobias, junior, and the latter's wife, Agnes Dobias. The defendant is Joseph Faldyn, executor of the will of Barbara F. Muzik, deceased. The bill of complaint, as finally amended, alleges, in substance, that Barbara F. Muzik conveyed certain real estate to John Dobias, senior; that the grantee gave to the grantor a promissory note for $1,500, secured by mortgage of the deeded premises, and later paid $600 on his note; that, subsequently, John Dobias, senior, conveyed the premises to John Dobias, junior, and his wife, subject to the mortgage; that the plaintiffs John Dobias, senior, and his son were copartners and, as such, performed services for said Barbara F. Muzik and advanced money to her, which she agreed should be applied to reduce or extinguish the note; that the defendant was appointed executor of her will; that he had instituted proceedings to foreclose the mortgage without having the amount which Mrs. Muzik was indebted to the plaintiffs determined and applied to the indebtedness on the mortgage note, and that such foreclosure would injure the plaintiffs, who would be without remedy to secure their rights. The prayers are that an accounting be had, that the amount found to have been due from Barbara F. Muzik to the plainiffs be applied to reduce or extinguish the mortgage indebtedness, that the plaintiffs be allowed to redeem the premises from the mortgage upon paying the balance due from them after such application, and that the defendant be ordered to discharge the mortgage upon such payment.

The case was referred to a master by an order of reference requiring him to ‘report his findings * * * together with such facts and questions of law as either party may request.’ He made a report in which he found that Barbara F. Muzik, by deed dated May 27, 1920, conveyed the premises in question to John Dobias, senior, who gave her a promissory note for $1,500 secured by mortgage of the deeded premises, that he paid $600 thereon and thereafter, on April 11, 1924, conveyed the premises to John Dobias, junior, and his wife, subject to a mortgage to Barbara F. Muzik in the sum of $900 which the grantees assumed and agreed to pay, the grantor agreeing to pay all interest due on the mortgage to the date of such conveyance, that Barbara F. Muzik left this country in April, 1921, for Czechoslovakia and never returned, but died there prior to May, 1930, that she left a will, naming the defendant as executor, which was duly admitted to probate, that there was due on the mortgage note up to March 9, 1931, principal and interest amounting to $1,441.97, except as such amount should be reduced by the indebtedness of Mrs. Muzik to the plaintiffs, and that the defendant had begun foreclosure proceedings under the power of sale contained in the mortgage. The matter now in controversy is whether there should be such a reduction by the amount of $921.10 and interest thereon.

The master found facts in regard to amounts claimed to be deductible and concluded that ‘the plaintiffs are entitled to a credit on the note of $921.10,’ with adjustments for interest and costs of foreclosure actually incurred, and that the ‘balance of such computation is the amount due on the said mortgage.’ Thereafter such balance-according to a computation not now attacked $725.62-was paid into court by the plaintiffs. The plaintiffs filed objections to the master's report which are not now material. The defendant filed an objection to the part of the master's report wherein he found that the plaintiffs were ‘entitled to a credit on the note of $921.10,’ on the ground that it appears by the report that such finding was not warranted, and moved that the report be recommitted to the master to ‘report all evidence, not now contained in the report, which led him’ to make that finding, or to report ‘that all the evidence on which said finding was made is contained in the report.’

A final decree was entered which overruled the objections-deemed to be exceptions under the rule-and confirmed the report, recited that the plaintiffs had paid into court the sum of $725.62, and that this sum ‘constituted the entire amount due upon the mortgage,’ directed the clerk of courts to pay said sum to the defendant with accumulations thereon, enjoined the defendant from foreclosing, assigning, or transferring the mortgage and from ‘attempting in any way to enforce or collect said mortgage or the note or claim thereby secured,’ and commanded him to deliver a sufficient discharge of the mortgage to the plaintiffs. The defendant appealed.

The decree did not deal in terms with the defendant's motion that the report be recommitted for a report of the evidence which led the master to find ‘that the plaintiffs are entitled to a credit on the note of $921.10’ or for a report ‘that all the evidence on which said finding was made is contained in the report,’ but inferentially, by the confirmation of the report, the motion was denied. Such denial was not reversible error. The order of reference did not require the master to report evidence (Brine v. Parker, 271 Mass. 86, 93, 171 N. E. 324), and recommittal for that purpose was within the discretion of the judge (Silva v. Turner, 166 Mass. 407, 44 N. E. 532;Webster v. Kelly [Mass.] 175 N. E. 69.

It was not error to overrule the defendant's exception and confirm the report.

The master states in the report that his finding that ‘the plaintiffs are entitled to a credit’ of $921.10 and interest was made after a ‘careful consideration of all the evidence.’ Unlike the conclusion of the master in Robinson v. Pero, 272 Mass. 482, 484, 172 N. E. 599, this finding was not based wholly upon subsidiary findings. As the evidence is not before us we cannot determine whether the finding was supported thereby, but the question for our consideration is whether on the face of the report this finding is inconsistent with other findings and plainly wrong. Davenport v. King, 273 Mass. 31, 172 N. E. 878.

The finding so far as it imports that Barbara F. Muzik was indebted to the plaintiffs in the sum of $921.10 is not necessarily inconsistent with the other findings. (As the master's report was filed before Agnes Dobias was made a party plaintiff, the word ‘plaintiffs' in the report is to be interpreted as referring to John Dobias, senior and his son.) The master found that in September, 1919, Mrs. Muzik was left alone upon her farm, that...