Lynn Inst. for Sav. v. Taff

• Decision Date: 01 July 1943
• Citation: 314 Mass. 380,50 N.E.2d 203
• Parties: LYNN INSTITUTION FOR SAVINGS v. TAFF et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 380

50 N.E.2d 203

LYNN INSTITUTION FOR SAVINGS

v.TAFF et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1943.

Action by Lynn Institution for Savings against Agnes C. Taff and another, trustees, and others, for authority to foreclose a real estate mortgage wherein the trustees answered disclaiming any knowledge with relation to whether anyone interested in the equity of redemption was in the military service of United States and alleging by way of counterclaim that certain articles of personal property in mortgaged premises were not subject to the lien of plaintiff's mortgage. Plaintiff's motion to strike out the answers on ground that it was not responsive to any issues presented by the bill of complaint was allowed and from decrees allowing the motion and authorizing plaintiff to sell the property covered by the mortgage, the trustees appeal.

Reversed and remanded.Appeal from Land Court, Suffolk County; Courtney, Judge.

Before FIELD, C. J., and DONAHUE, DOLAN, and COX, JJ.

J. L. Hannan, of Boston, for plaintiff.

P. B. Buzzell, of Boston, for defendant.

DOLAN, Justice.

This is a bill in equity brought in the Land Court for authority to foreclose a mortgage of certain real estate in accordance with the power of sale contained therein. The defendant trustees (hereinafter referred to as the trustees) are the record owners of the equity of redemption.

The plaintiff alleges that it is about to exercise the power of sale, and does not know whether any person who would be adversely affected thereby is in the military service of the United States within the meaning and scope of the Soldiers' and Sailors' Civil Relief Act of 1940, U.S.C. Title 50, Appendix, § 532, 50 U.S.C.A. Appendix § 532, and prays that an order issue authorizing the sale. The trustees answering do not expressly allege that they are in the military service, disclaim any knowledge with relation to whether any one interest in the equity of redemption is in that service, and allege that there are certain articles of personal property in the mortgaged premises that are not attached to the realty nor included in the mortgage, which were installed by the trustees after the date of the plaintiff's mortgage and upon which the plaintiff has no lien, under the mortgage, and that the plaintiff ‘since taking possession of said premises under its mortgage has refused to allow these defendants to remove said articles from the premises.’ The answer of the trustees contains a prayer that ‘in any decree of foreclosure or other decree which may be entered herein it may be expressly provided and stipulated that the articles * * * [in question] shall not be included in any foreclosure or foreclosure sale, and that the same are not subject to the lien of the plaintiff's mortgage.’ Lists of the articles, consisting of refrigerators, stoves and certain furniture, are contained in schedules annexed to the trustees' answer.

On motion of the plaintiff the bill was taken as confessed against the defendant Mary K. MacDonough, the mortgagor of record, and Agnes C. Taff, individually, for failure to appear. The plaintiff filed a motion to strike out the answer of the trustees on the ground that it was not responsive to any issue presented by the bill of complaint, and the judge entered an interlocutory decree allowing the motion and ordering that the trustees' answer be struck from the record. In a separate order allowing the motion the judge recited that the trustees ‘do not allege in their answer that they are in the military service within the provisions of the Soldier's & Sailor's Civil Relief Act of 1940.’ Thereafter the judge entered a final decree authorizing the plaintiff to sell the property ‘covered by the mortgage’ in question, ‘without the intervention of a commissioner or special master in accordance with the powers contained in said mortgage and without any further notice than that required by the terms of said mortgage, and the statutes of * * * [the] Commonwealth.’ The trustees appealed from these decrees.

In support of the interlocutory decree striking out the trustees' answer, the plaintiff argues that St.1941, c. 25, confers only the limited jurisdiction to determine whether any persons interested in the mortgaged premises are in the military service of the United States under the Soldiers' and Sailors' Civil Relief Act of 1940, and not jurisdiction under the general principles of equity jurisprudence of the matters alleged in the trustees' answer, and further, that even if the Land Court has general equity jurisdiction of the subject matter, nevertheless the allegations of the trustees' answer are not within the scope of the bill and, therefore, do not fall within the principle set forth in Perry v. Pye, 215 Mass. 403, 413, 102 N.E. 653;Baker v. Langley, 247 Mass. 127, 132, 141 N.E. 671, that a court of equity having acquired jurisdiction for one purpose will retain it for any purpose within the scope of the bill.

The answer of the trustees sets up a counterclaim and, unless the jurisdiction of the Land Court is limited, as argued by the plaintiff, to the determination of the sole question whether ‘any persons interested are in the military service,’ the counterclaim must be dealt with as such under Rule 6 of the Land Court (1935), incorporating by reference the rules of the Superior Court, to which reference will be made hereinafter.

Apart from the question whether ordinarily there is jurisdiction in equity in this Commonwealth to entertain suits for foreclosure of power of sale mortgages, it is fully settled that jurisdiction in equity does exist to entertain such suits where special facts call for equitable relief. Old Colony Trust Co. v. Great White Spirit Co., 178 Mass. 92, 94, 95, 59 N.E. 673;Hoffman v. Charlestown Five Cents Savings Bank, 231 Mass. 324, 329,121 N.E. 815;John Hancock Mutual Life Ins. Co. v. Lester, 234 Mass. 559, 561, 125 N.E. 594. And in the last two cases just cited it was specifically held that the existence of the Soldiers' and Sailors' Civil Relief Act of 1918, U.S. Act March 3, 1918, c. 20, § 302(3) 50 U.S.C.A. Appendix, § 123(3), was a special circumstance which was sufficient to give the equity courts of the Commonwealth jurisdiction to foreclose power of sale mortgages within the time specified in the act. The provisions of U.S.C. Title 50, Appendix, § 532(3), 50 U.S.C.A. Appendix, § 532(3), the Soldiers' and Sailors' Civil Relief act of 1940, are as follows: ‘No sale under a power of sale or under a judgment entered upon warrant of attorney to confess judgment contained in any such obligation shall be valid if made during the period of military service or within three months thereafter, unless upon an order of sale previously granted by the court and a return thereto made and approved by the court.’ This section is identical with section 302(3) of the Soldiers' and Sailors' Civil Relief Act of 1918, which was construed in the decisions of this court to which we have just referred. It follows that the existence of the Soldiers' and Sailors' Civil Relief Act of 1940 is a special circumstance which is sufficient to give the...