Johnston v. Cassidy

• Decision Date: 29 June 1932
• Parties: JOHNSTON v. CASSIDY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 593

181 N.E. 748

JOHNSTON

v.CASSIDY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1932.

Exceptions from Superior Court, Suffolk County; Whiting, Judge.

Action by Nellie E. Johnston against Septimus H. Cassidy and another. Verdict was directed for plaintiff, and defendants bring exceptions.

Exceptions overruled.

Cronin & Cronin and Edward M. Sullivan, all of Boston, for plaintiff.

Percy G. Bolster and Ethel E. Mackiernan, both of Boston, for defendants.

PIERCE, J.

This is an action of contract tried to a jury in the superior court, wherein the plaintiff seeks to recover against Septimus H. Cassidy and Augusta J. Cassidy the balance due on a mortgage note after the sale of the mortgaged property, under the power contained in the mortgage, and the application of the proceeds of said sale in part payment of the note.

The plaintiff was the payee of said mortgage note. The defendant Septimus H. Cassidy was the maker, and his wife, the defendant Augusta J. Cassidy, indorsed said note, waiving demand and notice. After this action had been brought, to wit, on June 13, 1931, Augusta J. Cassidy died. A suggestion of her death was duly filed and Septimus H. Cassidy, executor of her will, was cited to answer and defend. He appeared and filed his answer as executor on September 29, 1931. The answer is a general denial, payment, that the plaintiff did not notify the defendants of the foreclosure sale and did not conduct said sale fairly and properly or in good faith whereby the full market value of the property was not received at said sale. At the close of the evidence the trial judge directed the jury to return a verdict for the plaintiff against each defendant in the sum of $2,340.70, which was agreed to be the amount due on the note if the defendants or either of them was liable, and the defendants duly excepted. The jury returned a verdict for the plaintiff as directed by the judge. One bill of exceptions was filed, intended to cover the rights of Septimus H. Cassidy in both individual and representative capacities. The term defendant as used herein applies to him in both capacities whenever required.

The defendant admitted the validity of the mortgage and the mortgage note, and that the deed was in the statutory form with the statutory power of sale to convey the premises at 9 Hancock Place; that the foreclosure sale notice was properly published and that the expenses of the foreclosure sale were reasonable.

The uncontradicted evidence at the trial established that both note and mortgage were dated April 16, 1928; that the defendant conveyed the mortgaged property, subject to the mortgage and all unpaid taxes, on June 19, 1930, to one William E. Jackson; that in the fall of 1930 the mortgage interest not being paid the plaintiff authorized Charles H. Cronin, an attorney at law, ‘to take entire charge of the enforcement of the mortgage.’ Mr. Cronin testified that prior to the interest day he communicated with the defendant acting through one George Johnston, a brother of the plaintiff, and in consequence of what Johnston said to him Mr. Cronin communicated with Jackson; that he knew at the time that Jackson had become the owner of the equity of redemption through Cassidy's conveyance and that Cassidy was out of title though held liable on the note; and that when Jackson gave him no particular satisfaction with relation to his intention of settling the mortgage he made an entry for the purpose of foreclosure with the number of witnesses required by law and duly recorded the notice. The plaintiff offered evidence to prove an advertisement of the mortgaged property for sale under the power in the mortgage on January 9, 16, 23, 1931, and the defendant admitted (in his brief) that ‘the published...