Nelson v. Wentworth

• Decision Date: 04 January 1923
• Citation: 137 N.E. 646,243 Mass. 377
• Parties: NELSON et al. v. WENTWORTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 377

137 N.E. 646

NELSON et al.

v.WENTWORTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1923.

Appeal from Superior Court, Suffolk County; Franklin T. Hammond, Judge.

Suit by Samuel E. Nelson against John R. Wentworth and Charles H. Wentworth to enjoin a sale of premises under a mortgage, except subject to a lease to plaintiff, and for an accounting respecting the amount due under the mortgage, in which Clifton H. Eadie intervened as complainant and sought to redeem from the mortgage. From a final decree dismissing the bill of complaint, complainants appeal. Affirmed.

The bill of complaint alleged that plaintiff had a lease of part of the premises subject to the mortgage; that Charles H. Wentworth was the owner of the premises; that John R. Wentworth claimed to be an assignee and holder of the mortgage, but was in fact acting for Charles H. Wentworth, and was about to foreclose the mortgage for the purpose of fraudulently terminating plaintiff's rights. The intervening complainant also claimed a lease of part of the premises. Facts concerning the making of the leases are stated in the opinion.

Charles H. Wentworth had previously brought suit for partition against Annie T. Hayes, wherein he asked an accounting for rents and profits and a receivership, and in the course of such proceedings Annie T. Hayes and her husband, James H. Hayes, prepared an account, which showed payments of rent by the two complainants. The receiver also filed an account, showing the collection of rents. The court found that James H. Hayes, who made the lease, had no authority to bind the estate of Michael J. Brosnan, defendant's predecessor in title, and that the leases were never ratified and were not valid.

Albin L. Richards, of Boston, for complainants.

David W. Murray and Simon E. Duffin, both of Boston, for respondents.

RUGG, C. J.

This is a suit in equity by alleged tenants of real estate against the mortgagee and the owner of the equity of redemption, wherein the plaintiffs offer to take over the mortgage and seek to restrain its threatened foreclosure and to obtain recognition of their rights as tenants. The case was heard by a judge of the superior court, who made findings of fact and entered a decree dismissing the bill. The plaintiffs' appeal brings the case here.

The evidence is not reported, and therefore the findings of fact must be accepted as final. The question is whether the decree rightly was entered on the facts found. First Baptist Society in Brookfield v. Dexter, 193 Mass. 187, 189, 79 N. E. 342.

The premises here in question, together with adjoining premises, were owned by Mrs. Hayes and one Brosnan as tenants in common. The husband of Mrs. Hayes collected rents, made repairs, and paid taxes and mortgage interest. In 1917 Brosnan was adjudged to be insane and his temporary guardian permitted Hayes to continue as before. In October, 1919, Hayes executed a lease of a part of the premises here in question to one of the plaintiffs for a term of five years from November 1, 1919, and on March 1, 1920, he executed a lease of another part for a term of five years from...