Martin v. Murphy

• Decision Date: 20 January 1914
• Parties: MARTIN v. MURPHY et al.; DUNHAM v. MARTIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 466

103 N.E. 930

MARTIN

v.MURPHY et al.;

DUNHAM

v.MARTIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 20, 1914.

Appeal from Superior Court, Suffolk County; John H. Hardy, Judge.

Action by John J. Martin against Augustin V. Murphy and others, in which Otis Emerson Dunham filed a cross-bill. From a judgment for defendant Dunham on his cross-bill, plaintiff appeals. Affirmed.

Whipple, Sears & Ogden, of Boston (Sherman L. Whipple, Hugh W. Ogden, and Ralph E. Tibbetts, all of Boston, of counsel), for appellant.

Otis Emerson Dunham, of Boston, pro se.

BRALEY, J.

The allegations of the original bill, admitted by the answers, show that, having assigned to the defendants Maria E. Hatch and Lucy P. Hatch a half interest in the second mortgage, the plaintiff is in equity entitled only to the other half, although appearing of record to be the sole owner. It is also unquestioned that, solely for the purpose of effecting a foreclosure, assignments were given to the defendants Augustin V. Murphy and C. William Hunt, with the understanding that they were to act in the interest of their respective principals. A foreclosure sale under the instructions of the plaintiff followed, at which the defendant Dunham, who complied with the conditions of sale, was the purchaser. While the sale was in process of completion, the plaintiff having became dissatisfied with the proceedings because of alleged inadequacy of price and fraudulent conduct by Dunham, brought suit to vacate the foreclosure and set the sale aside in which he joined as defendants all parties in interest. Upon his application and without notice an injunction issued restraining the defendant assignees from accepting the balance of the purchase price, and completing the sale by delivery of a deed under the power. The injunction having been served, no conveyance was made or tendered, and the purchaser, to whom we shall now refer as the defendant, filed a cross-bill against Martin and Murphy, asking to be relieved from any further obligations under the contract of sale because without fault on his part he had been unable to obtain title. If relief was decreed, he asked for reimbursement with interest of certain sums paid for the benefit of the plaintiff to the first mortgagee for overdue interest, taxes and expenses to prevent foreclosure of the first mortgage which had been begun, and repayment with interest of the money deposited in part payment at the sale, with substantial damages for failure to obtain the property or for loss of his bargain. Hallett v. Taylor, 177 Mass. 6, 58 N. E. 154;Boyden v. Hill, 198 Mass. 477, 85 N. E. 413.

[1][2] It is obvious that the defendant Murphy was the plaintiff's agent, but no question of misjoinder has been raised. The presiding judge after hearing the merits dismissed the original bill, while granting relief against Martin as prayed for in the cross-bill. But while the evidence is reported, with a memorandum of his decision, the stipulation of the parties forming part of the record states that with the exception of the amount assessed as damages the plaintiff has complied with the final decree. The question for decision therefore is whether so much of the decree as relates to damages should be reversed. It is well settled that the function of a cross-bill is to obtain affirmative relief which cannot be granted under an answer, and must be resorted to wherever relief is asked against the plaintiff or a codefendant. Holbrook v. Schofield, 211 Mass. 234, 98 N. E. 97;Atlanta Mills v. Mason, 120 Mass. 244. It should be consistent ordinarily with the plaintiff's answer, and defense to the original bill, and the relief sought must be of an equitable character. Jackson v. Grant, 18 N. J. Eq. 145;Brooks v. Martin, 62 Miss. 217; Story, Eq. Pl. (8th Ed.) §§ 389, 393, 398, a.

[3] The plaintiff does not contend that because of his refusal to permit a conveyance and repudiation of the sale the defendant could not treat the contract as terminated and sue for the breach, even if the alleged discrepancy between the selling price and the fair market value of the property might have made it inequitable to have given relief if specific performance had been sought. Earnshaw v. Whittemore, 194 Mass. 187, 191, 80 N. E. 520;Clark v. Gulesian, 197 Mass. 492...