Exch. Trust Co. v. Hitchcock
| Decision Date | 13 June 1924 |
| Citation | 144 N.E. 373,249 Mass. 547 |
| Parties | EXCHANGE TRUST CO. v. HITCHCOCK et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; F. T. Hammond, Judge.
Suit in equity by the Exchange Trust Company against Ivah C. Hitchcock and others to establish liability as maker of promissory note, to recover balance due thereon with interest, and to reach and apply in satisfaction thereof shares owned by her in the Duro Company, a voluntary trust. On report. Final decree ordered for plaintiff.
The defendant signed husband's note and mortgage, and husband later signed another note. Defendant claims that proceeds of mortgage should be applied on note signed by her. It was held otherwise.
Barton & Harding, of Boston, for plaintiff.
Joseph Cavanagh, of Boston, for defendants.
The law of this case is settled by Richardson v. Washington Bank, 3 Metc. 536;Wilcox v. Fairhaven Bank, 7 Allen, 270;Fall River National Bank v. Slade, 153 Mass. 415, 26 N. E. 843,12 L. R. A. 131, and Boston Safe Deposit & Trust Co. v. Manning, 211 Mass. 584, 98 N. E. 509. The case differs entirely from Fitcher v. Griffith, 216 Mass. 174, 103 N. E. 471, and from Ricker v. Ricker (Mass.) 143 N. E. 539.
The contentions of the defendant rest throughout on a misapprehension of fact. The mortgage held as security for the note in suit was not made, as she contends, ‘for the sole purpose of securing the note.’ Its condition recites:
‘That if the grantor shall pay two thousand dollars in one year from this date, with interest * * * at the rate as stated in a note of even date and given herewith (together with any other liability or liabilities, direct or indirect of the grantor or either of them, to the holder or holders thereof, due or to become due, or which may hereafter be contracted, then this deed, as also a promissory note of even date herewith * * * shall be void,’ and thus makes clear, since it is the condition of the mortgage referred to in the margin of the note in suit, that the security may apply, and in terms is made applicable, to other indebtedness of Frederick C. Hitchcock then or thereafter existing.
The cases cited establish that the creditor in applying the proceeds of foreclosure as it has done, was wholly within its rights. The defense fails; and the order must be that a final decree be entered for the plaintiff in accordance with the terms of the report.
So ordered.
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Killoren v. Hernan
...153 Mass. 415, 26 N.E. 843,12 L.R.A. 131;Boston Safe Deposit & Trust Co. v. Manning, 211 Mass. 584, 98 N.E. 509;Exchange Trust Co. v. Hitchcock, 249 Mass. 547, 144 N.E. 373;Thibert v. Morello, 277 Mass. 286, 178 N.E. 516. In all such instances, the principal debtor has no power to direct th......
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Killoren v. Hernan
... ... that the defendant Hernan was indebted to the defendant trust ... company on two notes: one dated March 26, 1936, in the ... principal sum of $1,234.97, and ... Co. v. Manning, 211 Mass. 584 ... Exchange Trust Co. v ... Hitchcock, 249 Mass. 547 ... Thibert v. Morello, ... 277 Mass. 286 ... In all such instances, the principal ... ...
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...610, 614, 380 N.E.2d 1332 (1978). This is true even where other collateral secures the later advance. Exchange Trust Co. v. Hitchcock, 249 Mass. 547, 549-550, 144 N.E. 373 (1924). See generally Osborne, Handbook on the Law of Mortgages § 118 (2d ed. 1970). The Uniform Commercial Code also p......
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Financial Acceptance Corp. v. Garvey
...case concerns the securing clause in the bank's mortgage, quoted above, a so called "dragnet" clause. See Exchange Trust Co. v. Hitchcock, 249 Mass. 547, 549-550, 144 N.E. 373 (1924). The guiding principle in construction of a dragnet clause in a mortgage is the determination of the intent ......