Miller v. Perry

• Decision Date: 29 September 1955
• Citation: 129 N.E.2d 143,333 Mass. 155
• Parties: Harold C. MILLER v. Mary Ruth PERRY and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 143

129 N.E.2d 143

333 Mass. 155

Harold C. MILLER v. Mary Ruth PERRY and others.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Nov. 5, 1954.

Decided Sept. 29, 1955.

Alton F. Lyon, Rockland, for petitioner.

John G. Brackett, Boston, for respondents.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is an appeal by the defendants Perry from a final decree granting authority under the Soldiers' and Sailors' Civil Relief Act of 1940, U.S.C. (1946 ed.) Title 50, Appendix, § 532 [50 U.S.C.A.Appendix, § 532], to foreclose by entry and possession and the exercise of the power of sale a mortgage given by the defendant Mary Ruth Perry, the wife of the defendant, Charles H. Perry, to the plaintiff on June 29, 1951, to secure the payment of the unpaid balance on his note dated May 31, 1947, given to the plaintiff, fixing the amount due on said mortgage, and dismissing the counterclaims of the Perrys.

The judge made a report of the material facts and we have a transcript of such portions of the testimony as were designated by the parties. All questions of law, fact, and discretion are open for review by us and we can make findings in addition to those made by the trial judge but we do not disturb his findings of fact unless they appear to be plainly wrong.

When this controversy was here before, Perry v. Miller, 330 Mass. 261, 112 N.E.2d 805, we held that this mortgage was valid and Mrs. Perry's bill in equity to set it aside was ordered dismissed.

There is little dispute as to the material facts. The defendant Charles H. Perry, hereinafter called Perry, on May 31, 1947, entered into a conditional sale agreement with the plaintiff for the purchase of the machinery, tools, and good will of his woodworking business for $45,768. Perry paid $5,000 in cash and gave the plaintiff his note for $40,768 payable in eight yearly instalments of $4,552 and a ninth instalment in the sum of $4,352. The note also provided that failure to pay an instalment when due would render the entire unpaid balance due at the election of the holder of the note. The woodworking mill was located upon land belonging to the plaintiff's wife, Linnea T. Miller, and this was purchased on May 31, 1947, by the defendant Mary Ruth Perry, who gave back a first mortgage to the plaintiff's wife as a part of the purchase price. Perry on June 28, 1951, was in arrears on the payment of the instalment due on May 31, 1951. The plaintiff and Perry agreed that Miller would not insist upon exercising the acceleration clause in the note if Mrs. Perry would give a second mortgage on the mill site to secure the payment of the unpaid balance due on the note, and they also agreed that Perry should have an extension of six months in which to pay the balance of the May 31 instalment. There was then an unpaid balance of $26,312 on Perry's note.

The judge found that the plaintiff and Perry agreed on June 28, 1951, to an extension of six months for the payment of the balance of the May 31, 1951, instalment. The plaintiff agreed to forbear demanding at that time the entire amount due under the acceleration clause and to permit Perry to continue to make payments as provided in his note. Perry agreed to have Mrs. Perry give a second mortgage securing the payment of the balance due on his note. Perry, however, made no payments upon this instalment after October, 1951, leaving $1,002 unpaid upon this instalment. He never paid anything after this last mentioned time upon this instalment or otherwise upon his note. Perry owes $21,562 as principal upon his note as the judge properly found. He also owes interest down to February 1, 1954, the date of the final decree, amounting to $2,366.18, or a total of $23,928.18, and the decree should so state and order him to pay this sum with interest from the date of the decree.

On June 29, 1951, Mrs. Perry gave the plaintiff a second mortgage upon the mill site with mortgage covenants and upon the statutory conditions to secure the payment of $26,312 'in five years with four (4) per centum interest per annum payable annually as provided in our note.' Neither Mrs. Perry nor Perry signed any note in connection with this mortgage.

Where a wife joins in a mortgage of her separate realty to secure a debt of her husband, her estate is considered as security for his debt for which he and his estate are primarily liable. Savage v. Winchester, 15 Gray 453, 455; Browne v. Bixby, 190 Mass. 69, 70-71, 76 N.E. 454; Ricker v. Ricker, 248 Mass. 549, 143 N.E. 539. The terms and conditions upon which one becomes a surety are to be ascertained from the instrument creating that undertaking construed in reference to the usages of business, the object sought to be accomplished the relations of the parties to each other, and the attending circumstances. Zeo v. Loomis, 246 Mass. 366, 368, 141 N.E. 115; L. Littlejohn & Co., Inc., v. Handy, 246 Mass. 370, 374, 141 N.E. 127; Schneider v. Armour & Co., 323 Mass. 28, 30, 80 N.E.2d 34; Agricultural National Bank of Pittsfield v. Brennan, 295 Mass. 325, 329, 3 N.E.2d 769

The defendant Mrs. Perry undertook to secure the payment of the indebtedness of her husband to the plaintiff. The judge found that she intended upon the execution and delivery of the mortgage 'to incorporate by reference the obligations provided in the Perry note.' This amounted to a finding that she knew of the existence of the...