Dow v. Poore
| Citation | 272 Mass. 223,172 N.E. 82 |
| Parties | DOW et al. v. POORE. |
| Decision Date | 02 July 1930 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Essex County; Franklin T. Hammond, Judge.
Suit by Arthur M. Dow and others against Charles W. Poore. Judgment for defendant, and plaintiffs appeal.
Affirmed.
P. I. Lawton, of Newburyport, for appellants.
E. Foss, of Newburyport, for appellee.
This is a bill in equity brought by the owners of a parcel of land, situated in Salisbury in this commonwealth, to restrain the defendant from foreclosing a mortgage and to have the mortgage canceled on the ground of fraud, or, if the mortgage be held to be valid, to ascertain the amount of the mortgage debt.
The bill alleges that the plaintiffs are the owners of the land in question having derived title through one Elvira True; that the defendant claims to hold a mortgage on the premises for $1,000, given him by said Elvira True on August 13, 1925, and is about to foreclose the same; that at the time of the giving of the mortgage Mrs. True was incapacitated by reason of age, illness and impaired mentality, and was induced to make the conveyance through the fraud, duress and undue influence of the defendant. The bill also alleges that the mortgage was given without consideration and that no part of the alleged debt has been paid.
The case was referred to a master who made the following findings: The defendant from 1889 to 1896 was a retail grocer in Newburyport and supplied groceries in Salisbury at the house of Mrs. True, who was the grandmother of the plaintiffs and the mother-in-law of the defendant. In 1893 or 1894 the defendant, at the request of Mrs. True, expended money for labor and materials in the repair of her premises amounting to about $492, and the grocery bill amounted to about $475. By a deed dated September 5, 1890, Mrs. True conveyed her interest in certain property in Newburyport to the defendant for the consideration of $466.66, but no payment was then made by the defendant.
About 1898 or 1899 the parties had a settlement. The amount due from the defendant for the conveyance of Mrs. True's interest in the Newburyport property was credited on his bill for groceries and repairs and a note for $500 evidencing the balance was executed by Mrs. True and given to the defendant. The note was negotiable in form and bore interest but no maturity date. About every five years thereafter a renewal note was executed by Mrs. True and the old note was surrendered. No interest was ever paid on any of the notes or called for by the defendant, although each was in the sum of $500 with interest. In 1893 or 1894 Mrs. True spoke to him about his bill and asked him what she should do about it, and he told her ‘to let it go’ for the time being.
The master further found that the only resources of Mrs. True were the produce of the property on which she lived, and that at no time did she have sufficient funds to pay her indebtedness without mortgaging the property. When the last of the renewal notes prior to the one in suit was given she expressed regret at her inability to pay it. In June or July, 1924, the defendant informed her that the note would be due in about a year and he felt that she should do something with it; that on the next renewal he would draw up a different form and include some of the interest. To this she replied that she wanted him to have all that was coming to him and wished she could have paid him before. On August 13, 1925, the defendant and his son went to Mrs. True's home and there she executed the note and mortgage in question. The mortgage was for the sum of $1,000 with interest at six per cent., and was payable ‘in or within one year.’ This note was given in consideration of the outstanding $500 note and accumulated interest on the obligation from the time of its creation in the form of the original note given in 1898 or 1899. The master found that no fraud or undue influence was exercised by the defendant in procuring the execution of the note and mortgage; that although she was eighty-eight or eighty-nine years of age and for several months prior to the execution of the mortgage she had suffered from serious bodily ailments, and her vision was impaired, ‘she was, nevertheless, competent to understand and did understand the nature of the note and mortgage which she executed and acknowledged.’ A hearing was had upon the master's report by a judge of the superior court, and an interlocutory decree was entered confirming the report. A final decree was entered adjudging that there was due to the defendant upon the mortgage note the sum of $1,000 with interest. Other provisions in the final decree need not be here recited. The case is before this court on an appeal from the final decree.
It is the contention of the plaintiffs that the only valid consideration for the mortgage note was the obligation of Mrs. True arising out of the $500 note executed by her in 1919 or 1920; that, when each note in the series was executed by Mrs. True, it was presumed to be taken in payment of the then pre-existing indebtedness on the preceding note; that there was a partial failure of consideration for the $1,000 note to the extent of $350, this sum representing the difference between $1,000 and $500 plus interest on the note given in 1919 or 1920.
It is plain that the defendant's mortgage was available only to secure the payment of such sums as should be due him in equity and...
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Pearson v. Mulloney
...v. General Mortgage & Loan Corp., 254 Mass. 282, 287, 150 N. E. 293;Bailey v. Way, 266 Mass. 437, 441, 165 N. E. 388;Dow v. Poore, 272 Mass. 223, 226, 172 N. E. 82. The question, whether a mortgage debt exists, is not necessarily determined by inquiring whether the bank could recover agains......
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Pearson v. Mulloney
...Barry v. General Mortgage & Loan Corp., 254 Mass. 282, 287, 150 N.E. 293; Bailey v. Way, 266 Mass. 437, 441, 165 N.E. 388; Dow v. Poore, 272 Mass. 223, 226, 172 N.E. 82. The question, whether a mortgage debt exists, is not necessarily determined by inquiring whether the bank could recover a......
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Emerson v. Deming
...the defendant's indebtedness. Curties v. Hubbard, 9 Metc. 322;Stebbins v. North Adams Trust Co., 243 Mass. 69, 136 N.E. 880;Dow v. Poore, 272 Mass. 223, 172 N.E. 82. It is the contention of the plaintiffs that the judge erred in finding that there was an accord and satisfaction, because the......
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Commerce Bank & Trust Co. v. Hayeck, 97-P-598
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