McRae v. Pope
| Citation | 311 Mass. 500,42 N.E.2d 261 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Decision Date | 26 May 1942 |
| Parties | ARTHUR A. MCRAE & another v. ROBERT D. POPE & another. |
April 1, 1942.
Present: FIELD, C.
J., DONAHUE, DOLAN COX, & RONAN, JJ.
Deed Consideration. Mortgage, Of real estate: conveyance subject to mortgage, exoneration from mortgage, partial release payment. Contract, To pay mortgage. Evidence, Extrinsic affecting writings. Surety. Exoneration. Volunteer. Payment.
The grantor in a conveyance of a portion of a tract of land was entitled to show that, as a part of the consideration for the conveyance the grantee assumed and agreed to pay a note secured by a mortgage on the entire tract although the deed did not so state; and such grantor, upon being compelled to pay the mortgage debt, was entitled to recover the amount thereof from the grantee without first having the deed reformed.
An owner of mortgaged real estate who, after dissolution of a temporary restraining order against foreclosure in a suit in equity, had paid the mortgage debt to prevent foreclosure, was not a volunteer as to such payment nor barred on that ground from recovering in equity from the holder of the mortgage so much of such payment as was inequitably exacted.
The holder of a note secured by a mortgage covering land which the mortgagor had conveyed to the holder's son upon his agreement to assume and pay the mortgage debt and also land retained by the mortgagor, after releasing the son's land from the mortgage without consideration and beginning foreclosure proceedings with intent to compel the mortgagor to pay the entire mortgage debt or lose the land still owned by him and thereupon receiving such payment, was required in equity to return to the mortgagor such proportionate part of the amount he had paid as was established by the ratio between the value of the land released to the son and the value of the entire tract, with interest from the date of the payment.
BILL IN EQUITY, filed in the Superior Court on May 9, 1939, and afterwards amended.
The defendants appealed from a final decree entered by order of Leary, J. In this court the case was submitted on briefs.
S. M. Salny, for the defendants. J. A. Harasimowicz, for the plaintiffs.
When this bill in equity was filed on May 9, 1939, the plaintiffs husband and wife, sought reformation of a deed that they had given the defendant Robert D. Pope, hereinafter referred to as Pope, that he be ordered to pay a mortgage that covered the premises described in the deed and other premises owned by the plaintiffs, and that the defendant Mabel D. Pope, the mother of said Pope, hereinafter referred to as Mrs. Pope, be enjoined from foreclosing that mortgage. The bill alleged that prior to July 17, 1935, the plaintiffs were the owners of certain real estate in this Commonwealth on which they had given a mortgage; that on that date they conveyed a portion of the premises to Pope, who assumed and agreed to pay the unpaid taxes and the amount of said mortgage, with interest, as a part of the consideration for his deed, but that, by error and mistake of the scrivener, the deed did not set out the true agreement, but, on the contrary, contained the provision merely that the premises conveyed were subject to unpaid taxes and the mortgage, with interest. Further allegations were that Mrs. Pope, on January 7, 1939, received an assignment of the mortgage; that on March 28, 1939, she demanded of the plaintiffs the amount due on the mortgage; that, although the plaintiffs offered to pay the amount, she refused to assign the mortgage to them; that, on April 24, 1939, she gave her son a partial release of the mortgage, without consideration, and on April 28, 1939, commenced foreclosure proceedings.
The copy of the deed that is annexed to the bill, which Pope admits that he received, recites the conveyance "for consideration paid," and that the premises conveyed are subject to the unpaid taxes and also to the mortgage. The notice of foreclosure proceedings recites that the premises, excepting therefrom so much of them as had been released from the mortgage on April 24, 1939, will be sold on May 29, 1939. Mrs. Pope admitted in her answer, as did, in effect, her son, that foreclosure proceedings had been commenced by publication in accordance with a copy thereof annexed to the bill. Mrs. Pope was temporarily restrained from proceeding with the foreclosure, and the suit was referred to a master.
The master found that Pope did agree to assume and pay the mortgage and taxes; that the transaction between the plaintiffs and him was, in fact, an exchange of equities in properties, each of which was encumbered for $3,650; and that Mrs. Pope, as guardian of her son, who was at that time a minor, petitioned the Probate Court for license to sell his real estate which was the subject matter of the exchange. About two years after the exchange, Pope was requested to change the mortgage in question, so that the new mortgage would cover only the premises then owned by him, but he refused to do this. During the entire period from the date of the conveyance to him until January, 1939, he regularly paid the interest and amounts due on principal. In January, 1939, his mother paid the full amount of the mortgage and took an assignment of it, and, in the following April, she gave her son a partial release of the mortgage covering that portion of the premises that had been conveyed to him, as a "part of a plan to foreclose the mortgage, after execution of the partial release and force the plaintiffs to pay the amount due on the mortgage or lose their property through foreclosure." No consideration was paid for this partial release. On March 27, 1939, the mortgage being in default, Mrs. Pope demanded that the plaintiffs pay the amount due. On the question of mistake, the master found that the mistake or error was due to the failure of the plaintiff Arthur A. McRae, or the plaintiffs' agent, to properly inform the attorney who drew the deed of the full details of the transaction. This report was filed on June 30, 1939, and on July 7, 1939, by interlocutory decree, the "temporary injunction" was dissolved.
On July 21, 1939, the plaintiffs moved to amend their bill by striking out the paragraph in which it was alleged that through mistake and error of the scrivener, the deed did not set forth the true agreement of Pope to assume and pay the taxes and mortgage, and by inserting allegations to the effect that the mistake was that of the plaintiff Arthur A. McRae or of the plaintiffs' agent. Further allegations by way of amendment were that the temporary restraining order had been dissolved, that the plaintiffs, in order to prevent the foreclosure, were compelled to pay Mrs. Pope the sum of $2,988.67 for a discharge of the mortgage, and that, when she gave the partial release, she knew that the mortgage covered not only the property owned by her son, but also that owned by the plaintiffs. Additional prayers were that Mrs. Pope be ordered to repay the plaintiffs the sum they had paid her with interest and costs, and that she account to them for all moneys received under the mortgage. On December 6, 1940, the motion to amend was allowed, and the suit was recommitted to the master to make further findings of fact with reference to the issues raised by the amendment to the bill.
Facts appearing in the master's report after recommittal are that Pope, as a part of the consideration of the deed to him, agreed to assume and pay the outstanding mortgage and unpaid taxes; that the plaintiffs, in order to prevent the foreclosure sale, paid Mrs. Pope the amount alleged for the discharge of the mortgage; that the value of the parcel owned by Pope on the date that he received the partial release was $5,600; that the value of the property not conveyed by the plaintiffs was $1,800; "that the mortgage that the plaintiffs were compelled to pay covered in part the same premises partially released"; and that Mrs. Pope knew, when she executed the partial release to her son, that the mortgage covered not only the property owned by him, but also the property owned by the plaintiffs. Both reports were confirmed by interlocutory decree, and a final decree was entered adjudging that the defendants were jointly and severally indebted to the plaintiffs in the sum that the plaintiffs had paid to prevent the foreclosure of the mortgage, together with interest, which sum and interest the defendants were ordered to pay with costs. The defendants appealed from the order for final decree (see Carilli v. Hersey, 303 Mass. 82 , 87), and from the final decree.
The final decree does not deal with the question of reformation of the deed. The plaintiffs did not appeal. The defendants do not contend that reformation should have been ordered. In the circumstances, it is unnecessary to consider the question.
We are of opinion that under the allegations of the bill, as amended, the rights of the plaintiffs do not depend upon a reformation of the deed. In effect, it is alleged that Pope agreed to assume and pay the mortgage in question as a part of the consideration for his deed, and that, as a consequence, he should pay it. Further allegations, in effect, are that his mother is also obliged to repay the plaintiffs what they paid her.
The deed appears to be in the statutory form of a warranty deed. (See G. L. [Ter Ed.] c. 183, Sections 8, 10.) It recites that the conveyance is with "Warranty convenants," and, after a description of the premises conveyed, that the "above premises are conveyed subject to" unpaid taxes and "also subject to" the mortgage in question with interest. A deed in this form has the force and effect of a deed in fee simple with full covenants of warranty (s...
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