North End Sav. Bank v. Snow

• Decision Date: 26 February 1908
• Citation: 83 N.E. 1099,197 Mass. 339
• Parties: NORTH END SAVINGS BANK v. SNOW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 339

83 N.E. 1099

NORTH END SAVINGS BANK v. SNOW et al.

Supreme Judicial Court of Massachusetts, Norfolk.

February 26, 1908

COUNSEL

Colby & Bayley, for plaintiff.

Brandeis Dunbar & Nutter (Edward F. McClennen and Matthew Hale, of counsel), for defendants.

OPINION

MORTON J.

This is an action on a mortgage note by the mortgagee against the mortgagors. Certain facts were agreed, reserving the question of their materiality, and reserving also the right of the parties to introduce further evidence. The defendants offered to show certain other facts in addition to those agreed. The court ruled that the facts, if shown, would be immaterial, and excluded the evidence thus offered. No other evidence was introduced than that contained in the facts agreed upon, and the court found for the plaintiff for the amount of the note and interest. The case is here on exceptions by the defendant to the rulings and finding thus made. Exceptions were also taken by the defendants to the refusal of the court to order the plaintiff's president to answer certain interrogatories filed by the defendants but they have not been argued, and we, therefore, treat them as waived.

The mortgage was dated March 2, 1897, and was payable in three years from date with interest payable semiannually on the 1st days of June and December 'at the rate of 5 per cent. per annum during said term and for such further time as said principal sum or any part thereof shall remain unpaid.' The title to the property was in the female defendant. In November, 1898, the defendants conveyed the equity, subject to the mortgage, to one Finckelstein and one Friedman. Thereafter, Finckelstein and Friedman paid the interest until June 10 1904. No demand for payment of the mortgage was made either upon Finckelstein and Friedman or the defendants until December 27, 1904. The defendants offered to show that, after the note came due, the plaintiff agreed with Finckelstein and Friedman that, if they would continue to pay interest on the note according to the terms thereof, it would not foreclose the mortgage so long as the interest was regularly paid, and that Finckelstein and Friedman agreed to this and paid the interest under this agreement down to and including June 10, 1904. They also offered to show, in substance, that the property had greatly depreciated since the mortgage came due, and that it would not bring enough under foreclosure proceedings to pay the note.

After the conveyance of the equity subject to the mortgage the relation of the defendants to the plaintiff became in a sense that of sureties and if they had paid the note they would have been entitled to be subrogated to the mortgage notwithstanding they were the mortgagors. Payment of the note by them under such circumstances would not have operated to discharge and extinguish the debt as to them unless so intended. Pratt v. Buckley, 175 Mass. 115, 55 N.E 889; Pearson v. Bailey, 180 Mass. 229, 62 N.E. 265; Franklin Savings Bank v. Cochrane, 182 Mass. 586, 66 N.E. 200, 61 L. R. A. 760; Rice v. Sanders, 152 Mass. 108, 24 N.E. 1079, 8 L. R. A. 315, 23 Am. St. Rep. 804; Murray v. Marshall, 94 N.Y. 611; Spencer v. Spencer, 95 N.Y. 353; Travers v. Dorr et al., 60 Minn. 173, 62 N.W. 269. The land constituted the primary fund and they were entitled to have it applied in payment of the mortgage debt. Any valid and binding agreement, therefore, between the plaintiff...