Fields v. Othon
| Decision Date | 27 January 1943 |
| Citation | 46 N.E.2d 546,313 Mass. 115 |
| Parties | FIELDS et al. v. OTHON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeals from Land Court, Plymouth County; P. J. Courtney, Judge.
Suit by Charles G. Fields and another against Fotis Othon to remove a cloud on plaintiff's title resulting from an execution sale and in the alternative to redeem from the sale. From a final decree and from findings and rulings, plaintiffs and defendant appeal.
Appeals from findings and rulings dismissed, and final decree affirmed.Willard I. Morse, of Boston, for petitioners.
W. G. Cogan, of Brockton, for respondent.
Before FIELD, C. J., and DONAHUE, LUMMUS, DOLAN, and COX, JJ.
The plaintiffs, Charles G. Fields and Calliope G. Fields, husband and wife, bring this suit against the purchaser of their real estate at execution sale, to remove the cloud on their title resulting from that sale, and in the alternative to redeem from it. The bill alleges the following facts. Each of the plaintiffs owned a parcel of land in Brockton. Calliope G. Fields mortgaged her parcel to one Paraskis to secure her promissory note for $3,500, which was indorsed by her husband, Charles G. Fields. Paraskis brought an action on the note against both plaintiffs, and attached their real estate by general attachment on August 4, 1939. The plaintiffs dissolved the attachment by giving bond with sureties on October 23, 1939. Paraskis recovered judgment on April 8, 1940, for nearly $5,000. On April 26, 1940, Paraskis caused his execution to be levied upon both parcels, and on November 9, 1940, a deed thereof was given by the sheriff to the defendant Fotis Othon which purported to follow an execution sale to him at public auction. The bill alleges that in fact there was no execution sale at public auction and Othon paid nothing for the deed.
In the meantime, on May 28, 1940, Paraskis brought an action on the judgment against a surety on the bond to dissolve the attachment, and recovered judgment for more than $5,000 on September 24, 1940. On November 20, 1940, the execution was returned into court, satisfied in full. The plaintiffs contend that this satisfied all obligation under the mortgage note and the judgment recovered by Paraskis thereon.
The findings of the judge support the allegations of the bill, except that the judge found that the defendant Othon bought the property on execution sale for $500. It is recited that it was agreed in open court by counsel that there was but one question in the case, namely, Did the levy made on April 26, 1940, which recites a seizure of all the right, title and interest which the plaintiffs had on August 4, 1939, the date of the attachment, and the subsequent sheriff's sale and deed, give a valid title to the defendant, said attachment having been dissolved by bond filed October 23, 1939?
The judge ruled that, notwithstanding the dissolution of the attachment, the execution sale and the deed thereunder gave the defendant a valid title, which could not be removed as a cloud upon the title of the plaintiffs. But he ruled that the plaintiffs were entitled to redeem upon the payment of $500 plus interest. Both parties appealed from the final decree which followed these rulings.
The dissolution of the attachment did not free the property from liability to be seized and sold on execution. Dunbar v. Kelly, 189 Mass. 390, 394, 75 N.E. 740;Miller v. London, 294 Mass. 300, 305, 1 N.E.2d 198. The sale on execution to the defendant was prior to the satisfaction of the judgment recovered against the surety on the bond. Whatever the effect of that judgment upon the right of Paraskis ultimately to retain the proceeds of the sale on execution, it did not affect the right of the defendant to hold the title obtained on execution sale until it should be redeemed. For this reason the refusal of the judge to treat the execution deed to the defendant as a cloud upon the plaintiffs' title was right.
The defendant contends that so much of the final decree as provides for redemption from the...
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