Morse v. Stober

• Decision Date: 23 June 1919
• Citation: 123 N.E. 780,233 Mass. 223
• Parties: MORSE et al. v. STOBER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 223

123 N.E. 780

MORSE et al.

v.STOBER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1919.

Case Reserved from Supreme Judicial Court, Suffolk County.

Suit by Robert M. Morse and Augustus P. Loring, trustees under the will of Benjamin Adams, against William J. Stober and others.On reservation by a single justice of the Supreme Judicial Court for the determination of the full court.Case ordered to stand for hearing.

Charles S. Rackemann and John Noble, both of Boston, for plaintiffs.

John D. Graham and George A. Sawyer, both of Boston, for respondents.

RUGG, C. J.

This is a suit in equity praying for the specific performance of an agreement to buy real estate.The question is whether the plaintiffs are able to convey ‘a good and clear title thereto free from all incumbrances' except certain taxes and party wall agreements.The pertinent facts are that the plaintiffs, being the holders of a first mortgage in the common form containing the statutory conditions and the statutory power of sale created by St. 1912, c. 502, made entry in due form to foreclose the mortgage on August 5, 1918, certificate whereof was seasonably recorded, and without order of court sold the premises in accordance with the power at public auction on September 4, 1918, all for breach of the condition of the mortgage, and became themselves the purchasers at the foreclosure sale.Deed in usual form was executed and recorded.Contract of sale was thereafter made between the plaintiffs and the defendants Holdsworth and Farrington.The latter refuse to carry out the contract and accept the deed on the ground that the foreclosure was not made in pursuance of an order of court as provided by section 302 (3), chapter 20, of act of Congress approved March 8, 1918(40 U. S. Stats. at Large, 444 [U. S. Comp. St. 1918, § 3078 1/4 ff]), known as the Soldiers and Sailors Relief Act.

The affidavit of sale made and filed in accordance with the power of sale set forth that the owner of the equity of redemption was not in the military service of the United States.Three persons, being all whose names appear of record as having had an interest in the premises in question since August 1915, a date antecedent to the entry of the United States into the great war, are joined as defendants and it is alleged that no persons other than these have any legal or equitable interest in the premises.The bill has been taken for confessed against one of these three defendants, and the other two have answered that they have never been in the military service of the United States and have no interest in the premises.The answer of the defendants Holdsworth and Farrington admits all the allegations of fact in the bill and that, according to their information and belief, no party interested in said premises was in the military service of the United States as defined in said act of Congress; but it avers that because the power of sale to foreclose the mortgage was not exercised under and by authority of a court as required by said act of Congress, the plaintiff cannot give a good and sufficient title to the premises and that therefore specific performance of the agreement ought not to be enforced.

The meaning of a good and clear and sufficient title is settled in this commonwealth by repeated decisions.It was said by Knowlton, J., in Conley v. Finn, 171 Mass. 70, at 72, 50 N. E. 460, 461(68 Am. St. Rep. 399), summarizing the effect of numerous earlier cases there collected:

‘The general rule is, that, in order to maintain a suit for specific performance against a purchaser of real estate, the plaintiff must show that the title is good beyond a reasonable doubt.* * * But the mere possibility or suspicion of a defect is not enough to relieve a purchaser from liability under his contract.* * * In First African Methodist Episcopal Society v. Brown, 147 Mass. 296, 298[17 N. E. 549], Mr. Justice Devens says of the doubt which will relieve a purchaser of real estate from his obligation specifically to perform his contract, that it ‘must be reasonable, and such as would cause a prudent man to pause and hesitate before investing his money.It would be seldom that a case could occur where some state of facts might not be imagined which, if it existed, would defeat a title, when questions as to the validity of a title are settled beyond reasonable doubt, although there may be still the possibility of a defect, such mere possibility will not exempt one from his liability to complete the purchase he has made.* * * It would be often practically impossible for a party to negative all objections which might be imagined, and which, if they existed, would defeat his title.’'

In Close v. Martin, 208 Mass. 237, at 239,94 N. E. 388, 389, it was said:

‘When the defendant insisted upon a title which the attorney could absolutely guarantee never would cause him trouble, he asked for a better title than equity requires a purchaser to accept.A title which is good beyond a reasonable doubt is a title which equity requires a purchaser to take.’Foster, Hall & Adams Co. v. Sayles, 213 Mass. 319, 321, 100 N. E. 644.

In the application of these principles it has been held that a defect in title which had been cured by disseisin might be found good and marketable (Aroian v. Fairbanks, 216 Mass. 215, 103 N. E. 629), and that the condition of a bond, secured by mortgage, although undischarged of record, had been fully performed (Shanahan v. Chandler, 218 Mass. 441, 105 N. E. 1002).A title not good on the record thus may be shown by oral or other evidence outside the record to be marketable beyond any reasonable doubt, so that specific performance of a contract for...