Kennedy v. Poole

• Decision Date: 29 January 1913
• Parties: KENNEDY v. POOLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 495

100 N.E. 635

KENNEDY v. POOLE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 29, 1913

COUNSEL

F. H. Stevens, of Boston, for appellants.

Martin T. Hall, of Boston, for appellee.

OPINION

DECOURCY J.

This is a bill in equity for the reformation of an instrument given by Catherine Kennedy to her son Richard W. Kennedy, the plaintiff, which was intended by the parties to convey an estate in fee simple in the estate therein described, but by mutual mistake was made in the form of a mortgage. The master finds as follows: The plaintiff agreed to purchase this 'homestead' estate for $1,200, which was a fair price; $800 of this was to be obtained from the Natick Five Cents Savings Bank upon a note given by Catherine Kennedy and secured by a mortgage on the homestead. The payment of this mortgage the plaintiff was to assume, and he was also to give to his mother a note and second mortgage for the remaining $400. The preparation of the legal papers was intrusted to the attorney for the bank and instead of making a deed to the plaintiff and a mortgage back from him to his mother, he made out a mortgage to the plaintiff, and no deed. About 2 1/2 years later the plaintiff gave to the savings bank a mortgage on various properties including this homestead, and in so doing acted entirely in good faith, supposing that the legal title was vested in him; and the same attorney prepared the papers--one of which was a discharge of the mortgage for $800 given by Catherine Kennedy to the bank. In connection with this last loan the plaintiff as owner procured insurance on the homestead, payable in case of loss to the Natick Five Cents Savings Bank, first mortgagee, and the balance, if any, to Catherine Kennedy, second mortgagee, as their interests may appear. Until the death of his mother, about three and a half years after the execution of the instrument in question the plaintiff collected the rent that was paid, made repairs on the house and barn, paid the taxes, water rates, insurance and the interest on the bank mortgage, and in other ways acted as the owner in possession. After her death, and when a tenant refused to pay rent, the plaintiff for the first time discovered the mistake that was made, and that he held a mortgage instead of a deed of the homestead. The attorney, who admitted that there should be a deed to the plaintiff, sought to find the same, but died before the matter was adjusted and this litigation followed.

The exceptions...