Gaylord v. Pelland

• Decision Date: 23 October 1897
• Citation: Gaylord v. Pelland, 169 Mass. 356, 47 N.E. 1019 (Mass. 1897)
• Parties: GAYLORD v. PELLAND et al.
• Court: Supreme Judicial Court of Massachusetts

169 Mass. 356

47 N.E. 1019

GAYLORD

v.PELLAND et al.

Supreme Judicial Court of Massachusetts, Hampshire.

Oct. 23, 1897.

Report from superior court, Hampshire county.

Bill by Henry E. Gaylord against Paul Pelland and others, for the reformation of an alleged mortgage given by Paul Pelland to the Glascow Company, and duly assigned to plaintiff. No evidence was introduced on either side except the pleadings, master's report, and the decree in the case of Paul Pelland and others against Henry E. Gaylord, in which the court set aside an attempted foreclosure of the alleged mortgage, on the ground that the instrument as executed was invalid as a mortgage, for want of a seal, and that “the seal now upon said mortgage was placed thereon after its execution and delivery, and without the knowledge or consent of said Pelland,” mortgagor. Plaintiff offered evidence tending to show that it was the intention of said Pelland, at the time of the execution of said mortgage, that there should be a seal upon the same opposite his name. To the admission of this evidence defendants objected, on the ground that the decree in Pelland et al. against Gaylord rendered it incompetent and immaterial. Reported for the determination of the supreme judicial court, by agreement of parties that, if the evidence offered by plaintiff was competent and material, the case should stand for further hearing. Evidence held competent.

R.O. Dwight, for plaintiff.

Brooks & Hamilton, for defendants.

ALLEN, J.

If an instrument which requires a seal is, by accident or mistake, executed without one, a court of equity may grant relief by compelling a seal to be affixed or otherwise. Bernard's Tp. v. Stebbins, 109 U.S. 341, 349, 3 Sup.Ct. 252;Bullock v. Whipp, 15 R.I. 195, 2 Atl. 309;Conover's Adm'r v. Brown's Ex'rs, 49 N.J.Eq. 156, 23 Atl. 507;Bank v. Hollenback, 29 Minn. 322, 13 N.W. 145;Springfield Five Cents Sav. Bank v. South Congregational Soc. of Springfield, 127 Mass. 516;Chase v. Peck, 21 N.Y. 581.The evidence offered, therefore, was clearly competent, unless there was something in the circumstances of the case to deprive the plaintiff of a right to the relief prayed for. The defendants rely on two objections: (1) That the plaintiff is barred by the former decree, and (2) that, after the execution of the mortgage, a seal was placed thereon, without the knowledge or consent of the mortgagor. But neither of these objections is decisive against the plaintiff.

1. The former decree did not touch the matter of the present suit. It declared that the instrument, as executed, was invalid and void as a mortgage, for want of a seal, and, therefore, that the proceedings by which it had been sought to foreclose it were also void. The attempted foreclosure was therefore set aside. Springfield Five Cents Sav. Bank v. South Congregational Soc. of Springfield, 127 Mass. 516. There was no adjudication upon the question whether the holder of...