Gage v. Campbell

• Decision Date: 14 November 1881
• Citation: 131 Mass. 566
• Parties: Benjamin Gage v. William W. Campbell
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

131 Mass. 566

Benjamin Gage v. William W. Campbell

Supreme Court of Massachusetts

November 14, 1881

[Syllabus Material]

Middlesex. Petition to establish the truth of exceptions alleged by Benjamin Gage in an action brought against him by William W Campbell, and disallowed, by Bacon, J., who presided at the trial in the Superior Court.

The petition was referred by this court to a commissioner to hear the parties, settle the truth of the exceptions, and report thereon. The bill of exceptions, as tendered by the petitioner, (except the figures at the beginning of the paragraphs, which are added for convenience of reference,) was as follows, the words printed in italics being those which the commissioner reported should be stricken out:

"This was a landlord and tenant process to obtain possession of a lot of land, and buildings thereon, situated on Pearl Street in the city of Somerville, which lot of land the defendant bought in 1855, and erected the dwelling thereon, and has lived there ever since, and was in possession thereof at the time of trial. The trial was by jury, and verdict for plaintiff on June 17, 1880.

"The plaintiff claimed title by a written lease from one Daniel K Wakefield, who in turn claimed title from the receivers of the Mercantile Savings Bank of Boston by a quitclaim deed and the receivers claimed title through one Charles S. Johnson, who, as their agent and regularly employed by them as their clerk, was sent by sad receivers for the purpose, bid off said property at an auction had for the purpose of foreclosing a power-of-sale mortgage upon said property for $ 5000 and accrued interest, which mortgage this defendant had executed to said Mercantile Savings Bank; said Charles S. Johnson had received from said receivers as aforesaid a deed of said land in the usual form, and at the same time delivered his deed to said receivers of the same property as aforesaid. The lease in this case was given merely for the purpose of dispossessing the defendant.

"There was no claim that the defendant was ever a tenant of this plaintiff, but the plaintiff claimed, and offered evidence, which was denied by the defendant's evidence, that the relationship of landlord and tenant existed between his lessor and the defendant at the date of the said lease.

"1. In the course of the trial the defendant, on cross-examination of Daniel K. Wakefield aforesaid, drew from said Wakefield the admission that, when he first obtained his deed of the property from the receivers aforesaid, he executed and delivered to this defendant an obligation to sell said property to this defendant for the sum of $ 4200 in seven days from its date, which was some time in September 1878, and that thereafter he extended the time for paying said sum until the following May, as he said, upon the defendant agreeing to pay him rent meanwhile. But the defendant claimed that he agreed to pay said Wakefield interest on his $ 4200 only meanwhile, and that he never agreed to nor contemplated the relationship of landlord and tenant between himself and said Wakefield.

"2. In the course of the trial the defendant offered evidence to show that he deposited $ 1250 of the stock of the Eastern Slate Company, of Monson, Maine, with the Mercantile Savings Bank, as collateral security for his interest accruing upon his said mortgage, and that the bank accepted said stock; and, upon the consideration of said deposit of stock, duly and regularly extended the said mortgage; and that at the time of said pretended foreclosure, the extension aforesaid had not expired by its own limitation, and therefore said pretended foreclosure was null and void. This evidence was excluded by the court.

"3. The defendant also offered evidence to prove that the pretended foreclosure and sale was null and void from the fraud of the receivers and their agents, even if the jury should find no extension of the mortgage. This evidence the court also rejected.

"4. The defendant also offered evidence to prove that at the date of the suit he was the owner of an equity of redemption in said premises, and thereunder entitled to the possession. This evidence was rejected by the court.

"5. The court for the purposes of the present case ruled 'that a man, if he claims title and refuses to move, is not entitled to a reasonable time after notice to move, nor a notice even.'

"6. The defendant offered evidence to prove that the violence of plaintiff exercised upon himself and family from the date of his lease to the date of this suit was such that defendant had no reasonable time to move.

"7. A notice to produce certain receipts given by said Wakefield to this defendant, in relation to said property, was given by the plaintiff to the defendant's present counsel, P. H Hutchinson, and during the trial the defendant testified that, before he ever heard of this suit or knew the plaintiff at all, he had placed these receipts in the hands of a third party for certain reasons which he stated, and that, although he had tried his best to obtain them to use at this trial, he had been hitherto...