Drinan v. Nichols

• Decision Date: 27 June 1874
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Mary A. Drinan, administratrix, v. Rebecca A. Nichols & another

115 Mass. 353

Mary A. Drinan, administratrix, v. Rebecca A. Nichols & another

Supreme Court of Massachusetts

June 27, 1874

[Syllabus Material]

Suffolk. Bill in equity brought by the plaintiff as administratrix of the estate of Michael Drinan, against Rebecca A. Nichols and Clark R. Moore, to redeem an estate sold by the defendant Nichols to the defendant Moore under a power of sale contained in a mortgage made by John T. Pope to sad Nichols which estate had, after the execution of said mortgage, been conveyed by Pope to said Michael Drinan, subject to said mortgage.

The case was heard before Ames, J., who reserved it for the consideration of the full court upon the bill, answers and the following report:

"It appeared that the condition of the mortgage described in the plaintiff's bill of complaint had been broken by a failure to pay the semi-annual interest which became due July 18,1873, and has remained unpaid ever since. I find also that the sale made in pursuance of the power was made in good faith and in exact conformity to the provisions of the mortgage deed; that Clark R. Moore was the highest bidder at the sale, which was for $ 4600; that he acted in entire good faith, and claims the benefit of his purchase; and that he signed, at the time of the sale, a written memorandum or agreement of purchase. The value of the estate at the time of the sale was proved to be at least $ 6200. No deed of conveyance to the purchaser Moore has yet been executed, the completion of the bargain having been interrupted by the filing of the plaintiff's bill. The plaintiff offers in her bill to pay all arrears upon the mortgage, with interest and to indemnify the mortgagee for all the expenses incidental to or incurred in the advertising and selling of the property.

"It also appeared that the mortgage and note were made and executed by John T. Pope, who owned the equity of redemption, and who conveyed the estate, subject to the mortgage, to Michael Drinan, who was the plaintiff's husband, and died intestate; that the note for some time past had been deposited at a bank in Boston for the promisee; and that the notices calling for the payment of interest as it became due were issued from the bank, addressed to said Pope; and that the plaintiff had twice paid the amount of the semi-annual interest into the hands of Pope, to be by him paid to the bank. But I do not find that Pope was the agent of, or had any authority to represent or act for, the mortgagee. It appeared that after receiving from the bank the notice that interest had become due, Pope called upon the plaintiff, and she paid the money into his hands, with the expectation on her part and upon the understanding that he should at once pay it at the bank, or to the mortgagee. About the first day of September last, she became aware that Pope had not made the payment, and sent him a message to attend to the matter, which he promised to do without delay. She also sent a messenger to the office of the mortgagee's attorney, which messenger reported to the plaintiff that he had left word that if Pope did not make the payment, she would pay it herself on notice. A student in that attorney's office testified that the messenger came there twice, and said that Pope had received the money and would make the payment; but the witness had no recollection that any notice was agreed to be sent to the plaintiff."

The bill alleged that the plaintiff received notice from the attorney of Nichols, some time after the maturity of the interest, that the same had not been paid to the said Nichols, and that the plaintiff went immediately to the office of the said attorney, and stated to him the fact of payment to Pope, and requested the said attorney to inform her at once if Pope should not pay over said amount to him or to Nichols; that Pope was immediately seen in regard to it and that he faithfully promised to pay the amount over at once; that the plaintiff did not...