Matthews v. Dinner

• Decision Date: 07 January 1921
• Citation: 237 Mass. 153,129 N.E. 394
• Parties: MATTHEWS et al. v. DINNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 153

129 N.E. 394

MATTHEWS et al.

v.DINNER.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1921.

Appeal from Superior Court, suffolk County; Franklin T. Hammond, Judge.

Bill by Joseph Matthews and others against Leo H. Dinner. From adverse decree, petitioners appeal. Affirmed.

Albin L. Richards, of Boston, for appellants.

Samuel H. Davis, of Boston, for appellee.

DE COURCY, J.

On October 15, 1919, the plaintiffs mortgaged to the defendant their three-family house and lot for $1,100, subject to a prior mortgage to a co-operative bank for $3,200. The trial judge found that in February, 1920, they were in default in payment due under both mortgages and for unpaid taxes; and the defendant began foreclosure proceedings. The subsequent events are summarized in the judge's findings as follows:

‘I find that after the defendant began to foreclose by advertising the property for sale he agreed with the plaintiff's sister that if certain specific payments were made on specified dates and the expenses of the foreclosure sale were also paid, he would let the mortgage go on; that those payments were not made and the defendant proceeded, after adjourning the sale a month, to sell the property at foreclosure sale and to buy it in; that after he had bought it in and before he had recorded the deed he told the plaintiff, Mrs. Matthews, if she would pay the amount of the mortgage and the foreclosure expenses, amounting to $75 ($25 of which had already been paid), he would reconvey the property to her. I further find that she did thereafter pay the balance of the foreclosure expenses, amounting in all to $75, but that she did nothing about paying the mortgage. I further find that it was understood that the mortgage was to be paid within a reasonable time, and that more than a reasonable time has gone by, and the plaintiff has not done anything about paying the mortgage.’

The evidence is not before us, and these findings dispose of the case on its merits. The plaintiffs had no right to redeem after the foreclosure sale. R. L. c. 187, § 18; Way v. Mullett, 143 Mass. 49, 8 N. E. 881. Without considering the application of the statute of frauds, the promise to reconvey was on condition that the plaintiffs should pay the amount of the mortgage within a reasonable time, and this they have not done. Finally, the findings voluntarily filed by the judge stand on the same footing as a report of facts made under R. L. c. 159, § 23; Howe v. Howe...