Lynn Five Cents Sav. Bank v. Portnoy
| Decision Date | 03 July 1940 |
| Citation | 28 N.E.2d 418,306 Mass. 436 |
| Parties | LYNN FIVE CENTS SAV. BANK v. PORTNOY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Gray, Judge.
Action by the Lynn Five Cents Savings Bank against Lena Portnoy upon an account annexed to recover balance due upon a note secured by a mortgage and certain payments made by plaintiff. Judgment for plaintiff, and defendant brings exceptions.
Exceptions overruled.
T. B. Yeakley, of Lynn, for plaintiff.
J. H. Cinamon, of Boston, for defendant.
This is an action upon an account annexed to recover the balance due upon a note secured by a mortgage of real estate, taxes and municipal assessments paid by the plaintiff, and also certain expenses incurred by the plaintiff in foreclosing its mortgage. The plaintiff introduced evidence in support of all the items included in the account annexed and the judge found for the plaintiff for the amount claimed, together with interest. The case is here upon the exceptions saved by the defendant to the refusal of the judge to grant certain requests for rulings.
The defendant and others on July 25, 1924, delivered to the plaintiff their joint and several note for $6,000. The note was secured by mortgage of certain real estate located at No. 33 Florence Avenue, in Revere. The makers of this note also gave the plaintiff another note secured by a mortgage upon the adjoining lot, No. 29 Florence Avenue. Both of these lots were conveyed by the owners, the defendant and another, on March 2, 1925, subject to the mortgage on each lot, which the grantees assumed and agreed to pay. One Krim became the owner of the premises No. 33 Florence Avenue and entered into an agreement with the owner of No. 29 Florence Avenue establishing a common driveway between these two lots, a part of which was located on each lot. This agreement was dated February 26, 1929, and was recorded on April 30, 1929. Krim conveyed his property to one Lyons who owned it until the mortgage was foreclosed by the plaintiff on November 5, 1935. The plaintiff executed, on February 4, 1935, an agreement with Lyons and the owners of the adjoining property, confirming and defining the location of the common driveway referred to in the agreement of February 26, 1929, between the adjoining owners. This agreement was never recorded. The houses on these adjoining properties were about twelve feet apart and the side boundary was located about one half way between these houses. The establishment of a driveway extending for one half of its width on each side of this boundary for a distance of about sixty feet from the street was necessary if either lot owner intended to use the rear of his lot for a garage. The advertisement of the foreclosure sale followed the description contained in the mortgage, and also stated that the sale would be subject to and with the benefit of such rights, if any, in the driveway as created by an agreement dated February 4, 1935, not yet recorded but which confirmed ‘the way established by the agreement dated February 26, 1929 recorded Book 5095 Page 459.’ The defendant, whose answer did not contain a general denial, but did set up certain affirmative defences, contends that the participation of the plaintiff in the establishment of this common right of way and the foreclosure sale of the property subject to and with the benefit of this way discharges her from liability.
The defendant sold the mortgaged premises to her grantees who assumed and agreed to pay the mortgage. The result of such a conveyance was that as between the parties the grantees became the principal debtors and the defendant became a surety. The defendant was not only entitled to have the land freed from the lien of the mortgage but she could also enforce the promise of the grantees to pay the mortgage note and discharge her from any liability upon that indebtedness. Worcester Mechanics' Savings Bank v. Thayer, 136 Mass. 459;Rice v. Sanders, 152 Mass. 108, 24 N.E. 1079,8 L.R.A. 315, 23 Am.St.Rep. 804;Franklin Savings Bank v. Cochrane, 182 Mass. 586, 66 N.E. 200,61 L.R.A. 760;Codman v. Deland, 231 Mass. 344, 121 N.E. 14;Peterson v. Abbe, 234 Mass. 467, 125 N.E. 611;City Institution for Savings v. Kelil, 262 Mass. 302, 159 N.E. 731;Starks v. O'Hara, 266 Mass. 310, 165 N.E. 127;Costa v. Sardinha, 265 Mass. 319, 163 N.E. 887;Bloch v. Budish, 279 Mass. 102, 180 N.E. 729. The defendant had rights in addition to these she would have acquired by a conveyance of the land subject to the mortgage, and where she thereby became a quasisurety, in the sense that she was entitled to have the land regarded as the primary fund for the payment of the mortgage indebtedness. Pratt v. Buckley, 175 Mass. 115, 55 N.E. 889;North End Savings Bank v. Snow, 197 Mass. 339, 83 N.E. 1099,125 Am.St.Rep. 368;Lewis v. Blume, 226 Mass. 505, 116 N.E. 271;Lincoln v. Finkelstein, 255 Mass. 486, 152 N.E. 332;Phillips v. Vorenberg, 259 Mass. 46, 156 N.E. 61;Conway Savings Bank v. Vinick, 287 Mass. 448, 192 N.E. 81;Brown v. Kaplan, Mass., 19 N.E.2d 913.
The change in the relation of the defendant to the mortgaged land, resulting from her conveyance to those who assumed the mortgage, did not, in so far as the mortgagee was concerned, arise out of any contract between it and the defendant but was created by the situation attending the conveyance of her property by the defendant.
The evidence does not show that the defendant ever took any proceedings to set aside the foreclosure sale or that, although having seasonable notice, she objected to it. Russell v. Bon, 221 Mass. 370, 108 N.E. 1048; Brooks v. Bennett, 277 Mass. 8, 16, 177 N.E. 685. If the sale was void she would not be entitled to be credited with the net amount from it. Donohue v. Chase, 130 Mass. 137, 140.Goldman v. Damon, 272 Mass. 302, 306, 172 N.E. 226. She could not treat it as valid for one purpose and as invalid for another. Neither could she contend that the sale was void and also that the plaintiff ought to have secured more money from the foreclosure sale. The issue is whether, as the defendant contends, she was discharged by the conduct of the plaintiff in reference to the right of way and to the sale.
It is open to the mortgagor, upon a suit to recover a deficiency upon the mortgage note, to show that through a breach of duty which the mortgagee owed to her the property brought less than it otherwise would. Boutelle v. Carpenter, 182 Mass. 417, 65 N.E. 799;Kavolsky v. Kaufman, 273 Mass. 418, 173 N.E. 499;Cambridge Savings Bank v. Cronin, 289 Mass. 379, 194 N.E. 289.
The judge found that the plaintiff, without the knowledge or consent of the defendant, became a party to an instrument granting an easement of a right of way over the mortgaged premises, but he also found that there was no evidence that the premises were thereby damaged and that, if any inference was to be drawn from the testimony, it was that the premises had been benefited. The defendant having failed to show that more ought to have been secured from the foreclosure sale, the judge found for the plaintiff for the balance of the note.
Where the mortgagee releases for less than its fair value a portion of the mortgaged land, then the mortgagor whose grantee has assumed and agreed to pay the mortgage...
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- Lynn Five Cents Sav. Bank v. Portnoy
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Net Realty Holding Trust v. Giannini
...has not caused him a loss sufficient to discharge him from the surety relationship as matter of law. Cf. Lynn Five Cents Sav. Bank v. Portnoy, 306 Mass. 436, 440, 28 N.E.2d 418 (1940) ("The mortgagor, as surety, is released only to the extent that the value of the security has been lessened......