Fed. Nat. Bank v. Gaston

• Decision Date: 29 June 1926
• Citation: 256 Mass. 471,152 N.E. 923
• Parties: FEDERAL NAT. BANK v. GASTON et al. GASTON v. FEDERAL NAT. BANK OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 471

152 N.E. 923

FEDERAL NAT. BANK

v.GASTON et al.

GASTON

v.FEDERAL NAT. BANK OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1926.

Report from Land Court, Suffolk County.

Separate petitions by the Federal National Bank against William A. Gaston, executor, and another, and by William A. Gaston against the Federal National Bank of Boston, to register mortgages of registered lands. From an order dismissing the petition of Gaston and allowing the petition of the bank, and ordering its mortgage registered, said Gaston appeals, and the case was reported. Affirmed.

F. W. Falvey, of Boston, for Federal Nat. Bank of Boston.

A. A. Gillette, of Boston, for Gaston.

WAIT, J.

This case comes before us upon a report from the land court made pursuant to G. L. c. 185, § 15.

Both the bank and the Gaston petitions seek registration of mortgages of registered land in the absence of the duplicate certificate of the mortgagor.

The land court has jurisdiction to entertain and to pass upon them. G. L. c. 185 § 1, makes it a court of record with jurisdiction to hear and determine all questions arising upon petitions for the registration of title to land and easementsor rights in land held and possessed in fee simple. Jurisdiction to hear and determine exists even if, as a result of the hearing, the court must decide that it is without power to grant the remedy sought, or to pass finally upon the subject-matter.

Henry P. Nawn, the mortgagor, at his death was the registered owner of the locus, and William A. Gaston, as one of the executors of his will, contends that the land court is without jurisdiction to deal with the subject-matter because by G. L. c. 185, § 57, although an owner may mortgage registered land as if it were not registered and may use any form of mortgage sufficient in law for the purpose, no such conveyance can take effect as a conveyance or bind the land, but ‘operates only as a contract between the parties.’ Hence, he urges, the petitioners' rights are in a court of equity to compel the performance of an undertaking to furnish valid mortgage security, and not in the land court to obtain registration of the incomplete mortgage. His argument disregards a portion of section 57, which gives a further operation to the instrument, ‘and as authority to the recorder or assistant recorder to make registration.’ The recorder and assistant recorder are officers of the land court performing duties for it. Their acts in so doing must be subject to the direction of the court. It must have jurisdiction to decide whether those acts are valid; and whether an instrument presented requires or does not require them to act. It is not without jurisdiction to determine the effect as conveyances of the instruments used by them even though a court of equity be the court to decide the rights of the parties between themselves. Woodvine v. Dean, 194 Mass. 40, 79 N. E. 882.G. L. c. 185, § 60, provides for a decision by the court if the assistant register is in doubt upon any question, or if a party in interest does not agree as to the proper memorandum to be made. It is manifest that a refusal to register an instrument based upon a failure to present with it the owner's duplicate certificate under G. L. c. 185, § 62, must be a matter for action by the land court. That section expressly excepts action based ‘upon the order of the court.’

The statute (section 67) requires registration in order that title may pass and the land be affected by a mortgage; and, furthermore, by section 68, prescribes that the owner's duplicate certificate shall be presented to the assistant recorder with the mortgage deed. Both petitioners are driven to the court by their failure so to present the owner's duplicate.

In the Gaston petition the failure to present it when the mortgage deed, which also contained parcels of unregistered land, was left for record, is alleged to be due to mistake. The mortgagor on the same day that the mortgage was made also conveyed the registered locus to the mortgagee in fee and a new certificate was issued to the latter pursuant to the statute (section 64). This indicates that the owner's then duplicate certificate was in Mr. Gaston's control; for otherwise he could not have secured a new certificate. There would have been an incongruity in having the mortgage entered on the old certificate (section 68), and then taking a new certificate in fee with the annotation of an outstanding mortgage to the same owner bearing the same date. A merger would have resulted at once. There was, probably, no mistake, in any usual meaning of the word, in failing so to proceed. On April 12, 1920, Mr. Gaston reconveyed the locus to the mortgagor, who took out a new certificate (section 68) and on the same day gave a mortgage on the locus to the Union Institution for Savings which was duly noted on Mr. Nawn's new certificate. No notation of a mortgage to Mr. Gaston appeared on any certificate of the title. On these facts the land court well might find a merger which extinguished any title to this locus in Mr. Gaston. We do not see any estoppel which would prevent him from asserting a right under a mortgage or a contract for a mortgage, subject to intervening rights of bona fide mortgagees, such as the Union Institution for Savings seems to have been; but we can see nothing which prevented a merger of the mortgage right in the fee while he held it. Whether the right under the unregistered conveyance was an estate or merely rested in contract, nothing appears from the evidence to keep the two rights apart. If once they merged, no new life could arise in the mortgage when subsequent events made that mortgage interest...