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

• Court: Supreme Judicial Court of Massachusetts
• Citation: New York Life Ins. Co. v. Embassy Realty Co., Inc., 293 Mass. 352 (Mass. 1936)
• Decision Date: 30 January 1936
• Parties: NEW YORK LIFE INSURANCE COMPANY v. EMBASSY REALTY COMPANY, INC.

293 Mass. 352

NEW YORK LIFE INSURANCE COMPANY v. EMBASSY REALTY COMPANY, INC.

Supreme Judicial Court of Massachusetts, Middlesex.

January 30, 1936

November 8, 1935.

Present: RUGG, C.

J., CROSBY, PIERCE DONAHUE, & QUA, JJ.

Land Court Jurisdiction, Certificate of title.

After sale of two of three lots of registered land with a notation on the purchaser's certificate of title of an easement in favor of the two lots over the third lot, created by the seller without the assent of the holder of a registered prior mortgage on the third lot, the Land Court had inherent power (not derived from G.L. [Ter. Ed.] c. 185, Section 60) on suggestion of the mortgagee to amend the purchaser's certificate of title by adding a further notation that the easement was subject to the mortgage.

PETITION, filed in the Land Court on May 16, 1935, and heard by Corbett, J. G P. Davis, for the respondent.

R. D. Swaim, for the petitioner.

PIERCE, J. 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, Section 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 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, document 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 on 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 agreement set forth in deed of Ralph E. Snider et al. trustees to New England Theatres Operating Corp. dated February 21, 1929, being document No. 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 the 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, Section 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 jurisdiction to entertain this suggestion and the power to correct the memorandum on the respondent's certificate apart from any special...