Fairbanks v. Newhall
| Decision Date | 11 February 1916 |
| Citation | 111 N.E. 385,222 Mass. 598 |
| Parties | FAIRBANKS v. NEWHALL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Essex County.
Action by Abbie L. Fairbanks against Guy Newhall to restrain the foreclosing of a mortgage and for its canncellation and an accounting. From a decree dismissing her bill, plaintiff appeals. Affirmed.
Abbie L. Fairbanks, pro se.
Wm. E. Dorman, of Lynn, for defendant.
DE COURCY, J.
The master has found the following facts: By virtue of a license granted by the Probate Court, William B. Orcutt, as guardian of Jane Fairbanks, insane person, gave a mortgage upon certain real estate of his ward for $700, in payment of divers items for which he was indebted or obliged to the defendant. There was no fraud or deceit on the part of either party to the mortgage. When the defendant as mortgagee began foreclosure proceedings there were breaches in the condition of the mortgage due to unpaid principal, interest and taxes.
Jane Fairbanks died October 10, 1914, intestate, and the plaintiff, her only heir at law, brought this bill to restrain the defendant from foreclosing the mortgage, and for its cancellation and an accounting. The allegations, so far as relevant to this bill in equity, are disposed of adversely to the plaintiff by the findings of the master. Whether other complaints set out in her bill will be open to her in the hearing on the guardian's account, or in some other proceeding, is not now before us.
[1] Although the present record, apparently prepared by the plaintiff herself, is incomplete in some respects, it does not seem necessary to remit the case to the superior court for correction. For instance, it is not stated expressly that the exceptions to the master's report were overruled, or that the motion to recommit was denied; but it reasonably must be assumed from the subsequent entry of the final decree that those preliminary matters were disposed of adversely to the plaintiff. See Parsons v. Henry, 197 Mass. 504, 83 N. E. 1110. The plaintiff requested the court ‘to report the material facts,’ under R. L. c. 159, § 23; but that statute was not applicable, as no facts were found by the judge. The hearing before him was only on exceptions to the master's report. Her motions, made after the entry of the final decree, that the trial judge vacate the decrees and recommit the case, could not be granted. It is an established principle that:
‘After the entry of a final decree in equity,...
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...it as waived. Driscoll v. Smith, 184 Mass. 221 , 223. Attorney General v. Onset Bay Grove Association, 221 Mass. 342 , 346. Fairbanks v. Newhall, 222 Mass. 598 In the final decree the word "claim" is substituted for the word "note" wherever the latter word appears. The second paragraph of t......
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