Morse v. Bassett

• Decision Date: 12 April 1882
• Citation: 132 Mass. 502
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles W. Morse & others v. Abigail Bassett & others

132 Mass. 502

Charles W. Morse & others v. Abigail Bassett & others

Supreme Court of Massachusetts

April 12, 1882

[Syllabus Material] [Syllabus Material]

Worcester. Bill in equity, filed June 21, 1880, by Charles W Morse, and Hannah G. Morse, his wife, and Dwight Smith and others, trustees of the Methodist Episcopal Church of Athol, to obtain the cancellation of two mortgages on land in Athol, or, if the mortgages should be declared to be existing incumbrances on the land, to redeem the same. The case was referred to a master, who found the following facts:

On July 6, 1846, Sumner R. Morse, who owned the premises in question, consisting of a lot of land with a house thereon, which he occupied as his homestead, made a mortgage of the same to Joseph Estabrook to secure the payment of $ 600 on demand with interest. On January 11, 1863, Estabrook assigned the mortgage to Harriet A. Clark. Both the mortgage and the assignment were duly recorded. On December 11, 1870, Sumner R. Morse died, leaving a will, of which he appointed his wife, Mary T. Morse, executrix, and by which he gave to her in fee the rest and residue of his estate real and personal, and his homestead estate during her life, and, at her death, the homestead estate to Charles W. Morse and Hannah T. Morse, his wife, for their lives or the life of the survivor of them, and, after their death, to the Methodist Episcopal Church in Athol. At the time of his death, he was the owner of said homestead estate and occupied it as such, and it was subject to no incumbrance except the mortgage held by Clark, upon which the principal and interest for less than six months at six per cent per annum was then due. The will was not proved and allowed until November 6, 1877. Sumner R. Morse left real and personal estate, and also owed several debts. Immediately after his death, his wife, acting as executrix, although she had not been regularly appointed as such, took possession of all his real and personal estate, sold portions of the real and all of the personal property, and paid his debts, and substantially settled his estate according to the provisions of the will. She received from his estate property more than sufficient to pay his debts and the amount due on said mortgage.

For the purpose of acquiring the mortgage held by Clark upon said homestead estate, with a view to foreclose the same and thereby to acquire in his own name an absolute title to said estate for the benefit of Mary T. Morse, and to cut off and extinguish the interest of the plaintiffs for her benefit, Abner G. Stratton, the brother of Mary T. Morse, borrowed of his brother, Amos T. Stratton, the sum of $ 630, and with said money, on May 11, 1871, purchased and took an assignment of said mortgage from Clark; and on May 15, 1871, with the same purpose and intent, Abner G. Stratton, in the presence of two witnesses, made an entry under said mortgage upon said homestead estate for the purpose by him declared of foreclosing said mortgage for breach of the condition thereof; and afterwards said witnesses made a certificate under oath, as provided in the Gen. Sts. c. 140, § 2, which certificate, together with said assignment, was duly recorded in the registry of deeds, on May 17, 1871. After said entry Mary T. continued to occupy said estate, as she had done before, as her place of residence, except, however, that it was agreed between her and Abner G. that she should pay him the sum of $ 100 per annum, which was called by the parties rent for the use of the premises.

Mary T. Morse knew of the purpose and intent of Abner G., as before stated, and after said entry and during the three years then next ensuing, upon inquiry being made of her by the plaintiff Charles W. Morse, whether she had paid the interest upon said mortgage, she fraudulently stated to him that she had, and fraudulently kept from him the fact that said mortgage had been purchased and an entry made as aforesaid.

In purchasing said mortgage, making said entry, and allowing three years to expire without redeeming said mortgage, and keeping secret the fact of said entry from the plaintiffs, Abner G. and Mary T. acted in collusion, and with a fraudulent intent and purpose thereby to cut off and extinguish the interests of the plaintiffs in said estate under the will, and to secure the same for the benefit of Mary T.

On June 27, 1874, Abner G. conveyed all his interest in said homestead estate to Mary T. On March 19, 1875, Mary T., acting individually and not as executrix, executed and delivered to the defendant Amos T. Stratton a mortgage upon said homestead estate to secure the payment of $ 600 and interest at six per cent per annum. Interest has been paid thereon to March 19, 1879, and said $ 600 and interest thereon from that date is now unpaid.

Amos T. knew of the possession taken by Abner G. Stratton under said first-named mortgage, as he was one of the witnesses thereto and subscribed the certificate thereof; but the master did not find that he participated in the fraudulent intent and purpose of Mary T. and Abner G., or had knowledge of the collusion between them as above stated.

Mary T. Morse died on March 2, 1880, leaving a will, which has been duly proved and allowed, and by which said homestead estate was devised to the defendant Abigail Bassett as residuary devisee; Abigail was appointed executrix of said will, and gave a bond as provided by law; and the estate of Mary T. was more than sufficient to pay all her debts, including the mortgage note to Amos T. Stratton aforesaid.

Until after the death of Mary T. Morse, the plaintiffs never knew or heard of the purchase of said mortgage by Abner G. Stratton from Clark, or of the possession of Abner G. taken thereunder; and they failed to make inquiries concerning said mortgage, and were misled in respect thereto by reason of the statements made by Mary T. to the plaintiff Charles W. Morse, at several different times after said certificate was recorded, that she was keeping the interest on said mortgage paid up. After the death of Sumner R. Morse, Mary T. had possession of said estate until her decease; and, immediately after her decease, Abigail Bassett entered into possession of the premises, and has retained the same ever since, and she has no other or greater interest in the property than Mary T. had at the time of her death.

After the death of Mary T. Morse, and before the filing of this bill, the plaintiffs demanded of Abigail Bassett the possession of said homestead estate, which she refused to give them, or either of them, and claimed to hold the same under the will of Mary T. Morse.

Upon the foregoing facts, the master found that the entry under the mortgage was not followed by any such possession as to effect the foreclosure of the mortgage, and that the mortgage had never been foreclosed; that the conveyance from Abner G. Stratton to Mary T. Morse operated as an assignment of the mortgage; that it was the duty of Mary T. Morse to apply the property of her husband to the payment of the mortgage, and that she and all parties claiming under her were estopped, as against the plaintiffs, from claiming any title to said land under the mortgage, or under any conveyance made by her; and that nothing was due from the plaintiffs to the defendants, or any of them, on account of said mortgage; that, by the mortgage made by Mary T. Morse to Amos T. Stratton, no interest passed which was valid as against the plaintiffs; and that the plaintiffs were entitled to a decree giving them possession of the homestead estate, and setting aside the two mortgages.

Hearing before Devens, J., who reserved the case for the consideration of the...