Hanson v. Griswold
| Decision Date | 21 May 1915 |
| Parties | HANSON v. GRISWOLD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Hubert A. Murphy, of Boston, and Chas. Neal Barney, of Lynn, for plaintiff.
Robert Homans and Alexander G. Grant, both of Boston, for defendants.
This is a bill in equity to enjoin the foreclosure of a mortgage. The case is here on a report. From the report it appears that on March 4, 1902, a mortgage was executed by James Walker on a lot of land on which the Hotel Exeter was erected. The mortgagees were Adeline W. Griswold, William E. Stowe and Henry L. Morse trustees of the estate of William F. Homer and Mary D. Stowe. The mortgage secured three notes signed by the grantor, one to Mrs. Griswold for $5,800, a second to Stowe and Morse (trustees as aforesaid) for $2,500, and a third to Mrs. Stowe for $1,500. James Walker was a man of straw. The real owner of the mortgaged property at that time was William E. Stowe. William E. Stowe acquired title in the name of Walker to the land on which the Exeter was erected (hereinafter spoken of as parcel A), and to a small lot adjoining it (hereinafter called parcel B) by deed from Thomas G. Washburn, dated March 1, 1902, and recorded March 3, 1902. The mortgage here in question was dated March 4, 1902, and recorded March 6, 1902. At this time Stowe was acting as the attorney for Mrs. Griswold and also for Mrs. Stowe. At the time of the trial Stowe was dead and Washburn (who testified as a witness) did not have a clear recollection of the transaction.
It would seem from the facts stated in the report that Stowe acquired the title to lots A and B (which he had put in the name of Walker) by a conveyance of two parcels of land one on Ward street in Newton and the other on Irvington street in Waban. The land on Ward street in Newton was owned by Mrs Stowe and by William E. Stowe and Morse (trustees as aforesaid) in the propertions of $1,500 and $2,500. Just what interest Mrs. Griswold had in the Waban property is not very clear, but the judge found:
'That William E. Stowe, acting for Adeline Griswold, had received $4,000 for the sale of property on Irvington street, Waban, on which she originally had a mortgage for $3,500, and that Stowe intended to secure Mrs. Griswold for what she had parted with by the mortgage in question on Hotel Exeter.'
The finding in effect is a finding that Stowe, thinking himself under obligations to Mrs. Griswold to the extent of $5,800, and using the property of Mrs. Stowe and that owned by himself and Morse as trustees in acquiring parcels A and B from Washburn, had cause Walker to execute the mortgage here in question to secure notes for the amounts which the three persons named were entitled to. The judge further found, 'if the evidence justifies it,' that Stowe kept the title of the Exeter in the name of Walker 'in order to protect himself for sums he had paid out of his own pocket to preserve the properties of the' mortgagees. He made this further finding:
'It did not appear that any of the mortgagees other than William E. Stowe knew at the time of the transaction or thereafter that said Stowe had taken such a mortgage on their behalf until Mr. Norcross, attorney for Mrs. Griswold, learned of the existence of the same.'
The son of Mr. Stowe, one of the defendants in this case, who succeeded his father as trustee under the will of William F. Homer, testified that:
'He did not find the Walker mortgage or mortgage notes among his father's papers at his death.'
No demand ever was made on Walker for payment of the note during his life time, nor was any claim ever made on the estate of Walker, who has since deceased and on whose estate an administrator was appointed. On March 11, 1903 (that is to say, aboaut a year after the execution of the mortgage), Mrs. Griswold revoked her power of attorney to Mr. Stowe and appointed Otis and Grenville H. Norcross as her attorneys in his place. Otis Norcross testified that:
'He had never seen the original Walker mortgage or notes.'
The further testified that in 1903, when he took over the affairs of Mr. Griswold, he had the Hotel Exeter appraised by experts, and that, acting on their report, he decided that the mortgage here in question was worthless, and that he continued of that opinion until shortly before the present foreclosure proceedings were begun. When parcels A and B were conveyed by Washburn to Walker they were subject to a first mortgage to a savings bank for $20,000 and a second mortgage to S. L. Whipple, Esq., originally for $8,000, but then reduced to $5,000. In September, 1904, Washburn (who conveyed parcels A and B to Walker), acting for the second mortgagee, Whipple, threatened foreclosure of the second mortgage. Washburn testified and the judge found that Stowe told Washburn that he would convey the Hotel Exeter back to him (Washburn) to save the trouble of foreclosure proceedings, and that in answer to a question put to him by Washburn, Stowe said that the title was then the same as at the time of the conveyance from Washburn to Wealker in 1902, and that no other incumbrance had been put on the premises. Pursuant to this arrangment Walker, on September 13, 1904, conveyed parcel A to Washburn. In that connection the judge made this finding:
'I find that on the occasion when he [Washburn] sold the property to Stowe in 1902 title being taken in Walker's name and when he received the title back in 1904 he thought that he was dealing with William E. Stowe as an individual.'
The judge further found that this misrepresentation made by Stowe was relied upon by Washburn in taking the reconveyance from Walker in place of foreclosing the Whipple mortgage.
The judge found that Mrs. Griswold, by any act of her own, had not released, discharge or parted with the security she obtained by virtue of the mortgage from Walker, and that Stowe had no power or authority to act for her after March 11, 1903, but that Mrs. Griswold or her attorney Norcross knew in 1903 that Stowe was managing the Hotel Exeter as a buiding, and was endeavoring to effect a sale of it. He further found that Mrs. Stowe had not released, discharged or parted with the security she obtained by virtue of the mortgage, by any act of her own. He added:
'There is no evidence of the extent of William E. Stowe's authority to act for her [Mrs. Stowe] or that such authority was ever terminated prior to her death September 16, 1904.'
On June 14, 1905, Washburn, 'in ignorance of the existence of the mortgage in suit,' paid to Whipple the second mortgage note originally made by him, and thereupon that mortgage was discharged and released and the...
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