New York Life Ins. Co. v. Embassy Realty Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: PIERCE
• Citation: New York Life Ins. Co. v. Embassy Realty Co. , 293 Mass. 352, 200 N.E. 3 (Mass. 1936)
• Decision Date: 31 January 1936
• Parties: NEW YORK LIFE INS. CO. v. EMBASSY REALTY CO., Inc.

293 Mass. 352

200 N.E. 3

NEW YORK LIFE INS. CO.

v.EMBASSY REALTY CO., Inc.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 31, 1936.

Proceedings in the land court under G.L. (Ter.Ed.) c. 185, § 60, by the New York Life Insurance Company against the Embassy Realty Company, Inc. From the decision, the Embassy Realty Company, Inc., appeals.

Decision affirmed.Appeal from Land Court, Middlesex County; Corbet, Judge.

G. P. Davis, of Boston, for appellant.

R. D. Swaim, of Boston, for appellee.

PIERCE, Justice.

This case comes before this court upon the appeal of the respondent from an order of the land court amending the respondent's certificate of title under G.L.(Ter.Ed.) c. 185, § 60.

The petitioner, the New York Life Insurance Company, holds a mortgage given by Ralph E. Snider et al., trustees, dated June 13, 1928, registered in South registry district of Middlesex county as document No. 88688(88689) and noted on certificate of title numbered 23682 in registration book 159, page 89. This mortgage covers lot A on the plan referred to in said document. Certificate of title No. 23682 covered also lots B and C 1 on the plan. Subsequently to the mortgage, by deed dated February 21, 1929, decument No. 95181, lots B and C 1 were conveyed by Snider et al. to the New England Theatres Operating Corporation and by that corporation to the Embassy Realty Company, Inc., which now holds certificate of title for said lots B and C 1 numbered 28327, registered in book 189, page 561. By document No. 95181 Snider et al. subjected the equity in lot A to an easement for a fire escape, but the New York Life Insurance Company holding the prior mortgage in lot A never consented to the easement or subjected its mortgage thereto. Certificate of title No. 28327 for lots B and C 1 contains a memorandum that the land ‘has the benefit of the rights, easements and agreements set forth in deed of Ralph E. Snider et al. Trustees to New England Theatres. Operating Corporation dated February 21, 1929, being Document 95181.’ The petitioner ‘does not agree that the above is a proper memorandum made in pursuance of said deed but alleges that it is likely to be misleading and is untrue because no notice is given that upon foreclosure by said New York Life Insurance Company of its mortgage the easement to maintain said fire escape on lot A will be destroyed and because said Embassy Realty Company, Inc. now maintains that said memorandum is a decision * * * [by the Land Court] that it has right against said New York Life Insurance Company to maintain said fire escape.’

The petitioner seeks to have a correction or change made in said memorandum under the provisions of G.L.(Ter.Ed.) c. 185, § 60, which reads: ‘If the assistant recorder is in doubt upon any question, or if any party in interest does not agree as to the proper memorandum to be made in pursuance of any deed, mortgage or other voluntary instrument presented for registration, the question shall be referred to the court for decision, either on the certificate of the assistant recorder stating the question in doubt, or upon the suggestion in writing of any party in interest; and the court, after notice to all parties and a hearing, shall enter an order prescribing the form of memorandum to the assistant recorder, who shall make registration in accordance therewith.’ It contends that the land court had jurisdictionto entertain this suggestion and the power to correct the memorandum on the respondent's certificate apart from any special power.

The respondent alleges and contends that section 60 defines the procedure to be followed before registration of a document and before the making of a memorandum by the assistant recorder; that section 60 may be invoked in two instances only: (1) If the assistant recorder is in doubt upon any question, and (2) if any party in interest does not agree (with him) as to the proper memorandum to be made in pursuance of any deed, mortgage or other...