Haley v. Young

• Decision Date: 02 March 1883
• Parties: John Haley v. Catharine Young
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 364

John Haley v. Catharine Young

Supreme Court of Massachusetts

March 2, 1883

Argued November 10, 1882

Essex. Bill in equity to redeem land from a mortgage. At the hearing, the bill was dismissed, with costs; and the plaintiff appealed to the full court. The facts appear in the opinion.

Decree affirmed.

C. U Bell, for the plaintiff.

C. A DeCourcy, for the defendant.

Field J. C. Allen, Colburn & Holmes, JJ., absent.

OPINION

Field J.

The decree from which an appeal was taken recites that "this case came on to be heard upon bill and answer," and thereupon the bill was dismissed, with costs. The papers disclose a plea and answer. The plea is to the whole bill, and the answer does not purport to be in support of the plea. It does not appear that the plea was ever set down for hearing, and was either allowed, overruled, or ordered to stand for an answer; but, as the answer purports to answer the whole bill as a defence, it was probably considered that the defendant in filing it waived his plea; although it is possible that the plea may have been considered as an answer, and the answer as filed in support of the plea.

The bill alleges that, on February 19, 1879, the defendant "entered upon said premises for the purpose of foreclosure, and filed a certificate thereof in the registry of deeds for said county, which said foreclosure would be complete on the 19th day of February 1882;" and that "during the time limited for redemption the plaintiff has tendered the said defendant the amount due her on said mortgage, and asked her to accept it in satisfaction of the same." The plea distinctly alleges that the foreclosure became absolute on February 19, 1882, and "that at no time prior to the 20th day of February, 1882, was any tender of the amount due on said mortgage, or any other sum, made to her by the plaintiff, or by any other person, nor was any demand or request made upon her for an account of rents or profits of the mortgaged premises, or of the amount due on the mortgage, nor had she any notice of any intention or desire on the part of the plaintiff, or of any person, to redeem the premises from said mortgage." The answer also alleges "that prior to the 20th day of February 1882, when the said foreclosure became complete by lapse of time, the defendant had no notice of any intention or desire on the part of the plaintiff, or of any other person, to redeem the premises from said mortgage, nor was any request or demand made upon her to render any account of the amount due thereon." The answer also sets forth the circumstances under which the defendant occupied the premises; and in effect denies the allegation of the bill, "that the said defendant, by taking the rents and profits of said premises as aforesaid, has satisfied to herself most if not all of the principal debt and interest of said mortgage."

In a hearing upon the bill and answer, the allegations of the answer must be taken to be true; and whether the plea be regarded as overruled by the answer, or as standing for an answer, it does not appear that the mortgage has been satisfied by the taking of the rents and profits; and it does appear that before February 20, 1882, no notice of an intention or desire to redeem the...