Dooley v. Potter
| Decision Date | 07 September 1885 |
| Citation | 2 N.E. 935,140 Mass. 49 |
| Parties | John T. Dooley v. Arnold G. Potter |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bill in equity, filed August 25, 1879, to redeem a parcel of land in the town of Florida, in this Commonwealth, from a mortgage held by the defendant. The case was heard by W. Allen, J., on the report of a master and exceptions thereto, and reserved for the consideration of the full court. The facts appear in the opinion.
Exceptions to the master's report sustained, and the report recommitted.
M. E Couch, (C. J. Parkhurst with him,) for the plaintiff.
A Potter, for the defendant.
Colburn, J., absent. Devens, J.
In 1869, Peter Dooley gave to Hazael Wiley and others a mortgage on certain lands in this State and in the State of Vermont, the condition of which was the payment of certain promissory notes made by him. Of this mortgage the defendant became the assignee in 1876. In 1871, Peter Dooley gave a second mortgage, which was on the Massachusetts land only, to one Edmonds, who assigned the same to the plaintiff by deed dated November 30, 1878, and recorded on February 8, 1879. Previously to this assignment, the defendant, as assignee of the first mortgage, had brought, in 1876, a writ of entry against Peter Dooley, the mortgagor, to foreclose his equity in the land in Massachusetts, had obtained conditional judgment therein, and was put into possession thereunder on June 29, 1877.
In 1876, after the assignment to him of the first mortgage, the defendant brought a bill in equity in Vermont against Peter Dooley to foreclose his right of redemption of the lands in that State, and, in December, 1878, obtained a decree which would become absolute in December, 1879, upon failure then to pay the notes which the mortgage was given to secure. In November, 1879, the defendant brought another bill in equity in Vermont to foreclose the equity, under the same mortgage, to redeem the Vermont lands, against the present plaintiff, setting forth the decree rendered against Peter Dooley, and alleging that the present plaintiff claimed some interest in the land by virtue of a deed made to him by Peter Dooley in 1872. In that suit, it appeared that such a deed had actually been made to the present plaintiff in 1872, but had not been recorded until after the decree against Peter Dooley before stated was rendered. It was therefore held that the decree against Peter Dooley was binding upon the present plaintiff; and, in December, 1882, a conditional decree was thereupon rendered against the present plaintiff, founded upon the former decree against Peter Dooley. This decree has now become absolute by the failure to pay the sum found due for the redemption of the lands in Vermont within the time named.
The bill in the case at bar was brought by the plaintiff, as assignee of the second mortgage, on August 25, 1879, to redeem the lands in Massachusetts from the first mortgage. At the hearing before the master, the plaintiff offered to prove that there was nothing whatever due on the notes, and that they had been fraudulently obtained: all of which was known to the defendant at the time the conditional judgment was rendered in Massachusetts. He contended that he was not bound, in the case at bar, by the decree in Vermont, as settling, as against him, the amount then due on the mortgage, since he was not there allowed to show this, because it was there held that he was bound by the decree against Peter Dooley (the deed from him not having been recorded when the decree against him was rendered) so far as the Vermont lands were concerned. He further contended that, in any computation of the account on the mortgage notes in this State, he was entitled to have deducted therefrom the value of the lands in Vermont embraced in the mortgage, which lands the defendant had obtained by the decree of foreclosure there made, that decree having now become absolute.
For the purposes of the hearing, the master ruled as follows:
1. That the conditional judgment heretofore rendered in this State upon the writ of entry brought by the defendant against Peter Dooley was conclusive against the plaintiff as to the amount then due on the mortgage.
2. That the plaintiff was further concluded as to the amount due on such mortgage by the decree in Vermont rendered in the suit to which he was a party; and that neither this decree nor the judgment could be impeached in the manner proposed by the plaintiff.
3. That the value of the land in Vermont could not be deducted from the amount now due on the mortgage.
These questions may be conveniently disposed of in their order.
1. The writ of entry was brought against the mortgagor after he had made the second mortgage on the lands in this State. It is not suggested that the second mortgagee, whose rights the plaintiff has, was a party to it, or had notice of it. The foreclosure and redemption of mortgages are regulated by statute. Foreclosure is worked by three years' possession for the purpose of foreclosure, and the possession for that purpose may be attained -- not to notice the exceptional cases in which a bill in equity to foreclose will lie -- by a writ of entry, or by entry in pais. Each is a statutory proceeding for obtaining possession for foreclosure. Under a writ of entry, the amount due on the mortgage is ascertained by the court, and the judgment is conditional, that, if the amount is not paid within a certain time, the plaintiff shall have possession. After possession obtained in either mode, the right of redemption continues for three years, and, if it is not exercised within that time, the foreclosure becomes absolute. It may be that possession acquired by action is, under the statute, as conclusive upon every right of redemption as possession acquired by entry in pais. See Robbins v. Rice, 7 Gray 202.
But the question whether the finding of the amount to be paid to redeem is conclusive upon a prior purchaser from the mortgagor, not a party to the action, is a very different one from whether the possession obtained under the judgment is a possession against him.
The action may, by statute, be brought against whoever is tenant of the freehold, and though he be such only by disseisin at the election of the mortgagee, and although possession acquired in such action may limit the time within which the owner of the equity may redeem, as would possession acquired by an entry in pais, that action cannot fix the amount he must pay to redeem. He is a stranger to the action, and may have no notice of it, and has no right to be heard in it; and to hold him concluded by it, as to the amount of the incumbrance upon his land, is against first principles. See Salem v. Eastern Railroad, 98 Mass. 431, 446. It makes no difference that the action is against the mortgagor and original debtor; if the owner is concluded when the action is against the mortgagor, he must be when it is against a mere disseisor. There is no authority for holding that a purchaser of the equity of redemption is concluded, in a bill by him to redeem, by the amount of the conditional judgment in an action brought against the mortgagor after he had conveyed his equity. Sparhawk v. Wills, 5 Gray 423, decided that the judgment is conclusive as to the amount between the parties to it. Stevens v. Miner, 5 Gray 429, is more relied on as an authority to the conclusiveness of such a judgment. This case is reported only in a note to Sparhawk v. Wills. No opinion was given therein, and it does not appear whether the assignment to the plaintiff was made before or after the action brought against the party under whom he claimed. In the case of Miner v. Stevens, 1 Cush. 482, it did appear that the defendant, Ensign D. Stevens, received his assignment from J. C. Stevens previously to the action brought against the latter. The case was decided against Ensign D. on a distinct ground, and the question now before us was not passed upon; but the opinion given by Mr. Justice Wilde contains a strong intimation that the judgment was not binding on Ensign D. Stevens, as he had received his assignment before the action brought against his grantor. If in Stevens v. Miner it was intended to hold otherwise, it is certainly strange that the case was not regularly reported, and a statement thereof made which would have shown that this point was involved. For other cases in regard to the effect of a writ of entry for foreclosure, see Keith v. Swan, 11 Mass. 216; Hunt v. Hunt, 17 Pick. 118; Shelton v. Atkins, 22 Pick. 71; Wheelwright v. Freeman, 12 Met. 154.
We are brought to the result, therefore, that, whether or not possession obtained upon a writ of possession on a conditional judgment in a writ of entry against a mortgagor in possession, who had conveyed his equity before the commencement of the action, be sufficient to work a foreclosure against the prior purchaser of the equity, the judgment is not evidence against him in a suit by him to redeem, unless as showing the fact of possession taken.
2. The question as to the conclusiveness of the decree in the second bill in equity in Vermont, so far as it determined the amount then due on the mortgage, presents a very different inquiry. The suits in Vermont related to lands in that State, but the lands were transferred upon the same terms and conditions and were included in the same mortgage, as the lands in Massachusetts. The defendant contends that the question involved in the Vermont suit was the same with that which is here in issue, -- namely, what was the amount due on the mortgage, -- and was settled there as it would have been under the general principles which apply by the law of contracts; that if there were deductions, as...
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