Johnson v. Thompson

• Decision Date: 11 September 1880
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Rufus A. Johnson v. William C. Thompson & others

129 Mass. 398

Rufus A. Johnson v. William C. Thompson & others

Supreme Court of Massachusetts

September 11, 1880

Suffolk. Bill in Equity, filed January 6, 1876, against William C. Thompson, William A. Bacheller and Samuel Atherton, alleging that the plaintiff was the owner of certain parcels of land in Revere; that, in 1872, the former owner of the land mortgaged it for $ 5000 to Lyman B Frazier, who subsequently assigned one undivided half of his interest in the mortgage and note secured thereby to the defendant Bacheller, who subsequently got possession of the mortgage and note, and discharged the mortgage and cancelled the signature on the note, without the knowledge of Frazier that, after this, the defendant Thompson took a new mortgage upon the land for $ 5000, and for default of payment in the interest, had advertised the land for sale, under a power contained in his mortgage; that the defendant Atherton, the assignee in bankruptcy of Frazier, contends that Bacheller had no right to discharge the whole of the mortgage to Frazier, and that he has a lien on the land for one half the mortgage debt; that the plaintiff contends that the whole incumbrance upon the estate is but $ 5000, and he is willing to pay that sum to the person entitled to it.

The prayer of the bill was that Thompson be restrained by injunction from proceeding with the sale; and that the court should determine the conflicting claims of the parties, and to whom the plaintiff should pay the amount found to be due.

Thompson alone appeared, and filed an answer, averring that Bacheller had authority to cancel and discharge the mortgage to Frazier; and that the defendant's mortgage was a valid lien on the land.

The case was referred to a master, who reported the following facts: On January 1, 1875, the plaintiff purchased the land in question subject to four mortgages: one to Elijah A. Shaw for $ 3000, then held by Augustus N. Loring; one to Charles A. Whiting, for $ 1500; one to William Sanborn, for $ 800 and one to the defendant Thompson, for $ 5000, dated November 20, 1874. On August 6, 1872, the then owner of the land mortgaged it to Lyman B. Frazier, for $ 5000; and on December 28, 1872, Frazier assigned one undivided half of the mortgage and note secured thereby to the defendant Bacheller. In 1874, Frazier became a bankrupt, and the defendant Atherton was appointed his assignee. After this, Bacheller, who knew of the bankruptcy, took from Frazier's safe, without his knowledge, the mortgage and note, and on November 19, 1874, having received payment in full of the note, executed a discharge of the...