May v. Gates
| Decision Date | 26 June 1884 |
| Citation | 137 Mass. 389 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | John J. May v. Albert Gates, Jr., & others |
Middlesex.
L. S Dabney & S. C. Darling, for the plaintiff.
J. A Maxwell, for the defendants.
This is a bill in equity to redeem land from a mortgage. According to the averments of the bill, and the facts stated in the report of the master, the plaintiff was a creditor of one Winsor, who had bargained for the purchase of the land in question, and taken the title fraudulently in the name of one Reed, who executed the mortgage to Susan E. Cheever, one of the defendants. The plaintiff thereupon brought an action upon his claim against Winsor, attached Winsor's interest in the land, recovered judgment, levied his execution upon Winsor's equity of redemption so held in the name of Reed, and became the purchaser thereof at the sheriff's sale. The decree was for the plaintiff. The defendants entered no appeal, but the plaintiff appealed from the decree fixing the sum which he must pay in order to redeem. No question therefore is now open to the defendant as to the plaintiff's right to redeem; and the only question is that presented by the plaintiff's appeal.
Reed's note to Mrs. Cheever, which the mortgage was given to secure, was dated December 10, 1880, for $ 600, payable in two months, "with interest to be paid monthly, at the rate of three per cent per month in advance during said term, and for such further time as said principal sum, or any part thereof, should remain unpaid after maturity, with interest at the rate of five per cent per month." The mortgage, however, did not show the rate of interest, but was conditioned for the payment of the sum of $ 600 in two months, "with interest as specified in the note," &c. The bill to redeem was brought in March, 1882, and the principal question is whether the plaintiff is bound to pay the rate of interest specified in the note in order to redeem; and this depends mainly, in our view, upon the question whether enough appears in the circumstances of the case, as stated in the master's report, to show a fraudulent misleading of the plaintiff by the mortgagee's agent.
It appears that an assignment of the mortgage was executed to the defendant Gates; but this was merely a formal matter and he held the title for Mrs. Cheever. Murray Cheever was her husband and agent, and took part in the negotiation for the note and mortgage, and had the custody of them, and full authority to take payment of the note at any time, and to dispose of it as he saw fit. The plaintiff as an attaching creditor would have a right to redeem at the maturity of the mortgage debt. Chandler v. Dyer, 37 Vt. 345. Bridgeport v. Blinn, 43 Conn. 274, 281. He had therefore an interest to know the...
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...Grillo, 17 Cal. App. 540, 120 P. 425; Burleigh v. Hecht, 22 S.D. 301, 117 N.W. 367; McCoy v. Crossfield, 54 Ore. 591, 104 P. 423; May v. Gates, 137 Mass. 389; Kern Oil Co. v. Crawford, 143 Cal. 298, 76 P. 1111, 3 L.R.A. (N. S.) 993. However, as we find it necessary to review the action of t......
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