Perry v. Oliver

• Decision Date: 31 January 1945
• Citation: 317 Mass. 538,59 N.E.2d 192
• Parties: PERRY et al. v. OLIVER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 538

59 N.E.2d 192

PERRY et al.

v.OLIVER et al.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 31, 1945.

Bill in equity by Mary G. Perry and another to enjoin Mary C. Oliver and another from foreclosing a mortgage, and for discharge of mortgage and cancellation of the mortgage note. From a decree discharging the mortgage and ordering the mortgage note surrendered to named plaintiff, named defendant appeals. On death of Mary G. Perry, her administrator was substituted. The bill was dismissed as to defendant Aldrich.

Decree modified and affirmed.Appeal from Superior Court, Bristol County; Hanify, Judge.

Before FIELD, C. J., and LUMMUS, QUA, RONAN, and SPALDING, JJ.

M. H. T. McGregor, J. B. Tracy and F. A. Tracy, all of Taunton, for plaintiffs.

V. J. Deponte, of Taunton, for defendants.

SPALDING, Justice.

The plaintiffs, who are husband and wife, seek, by this bill in equity, to enjoin the defendant Oliver,¹ hereinafter called the defendant, from foreclosing a mortgage; they also ask for a discharge of the mortgage and a cancellation of the mortgage note.

The report of the master to whom the case was referred was confirme by an interlocutory decree (entered by consent of the parties) from which no appeal was taken. The findings of fact of the master thus became conclusive between the parties. Samuel & Nathan E. Goldstein, Inc., v. Dietz, 284 Mass. 548, 188 N.E. 259. A final decree was entered discharging the mortgage and ordering the mortgage note surrendered to the plaintiff Mary G. Perry. The defendant's appeal from this decree brings the case here.

The facts found by the master pertinent to this appeal are these: In 1923 the plaintiffs, having acquired several lots of land in Seekonk, borrowed $1,100 from the defendant (who was the mother of the female plaintiff) to assist them in financing the construction of a dwelling house on one of the lots. This was an unsecured loan and was not evidenced by a note or other writing. In February, 1930, the defendant brought an action at law against the plaintiffs to recover the amount of the loan, and an attachment was made of their real estate.

In December, 1933, the plaintiff Mary G. Perry, for the purpose of protecting the defendant with respect to the loan (no part of which had been paid), gave her a note for $1,100 secured by a mortgage of the plaintiff's interest in the Seekonk real estate.² William C. Perry did not join in the note or mortgage. It was found that no fraud was practised on Mrs. Perry in connection with the giving of the note and mortgage. We mention this because the bill alleges that they were procured by fraud.

Prior to September, 1935, nothing was done by the defendant in prosecuting the law action that she had commenced against the plaintiffs. On September 5, 1935, when the case was about to be reached for trial, a conference was held at which the plaintiff William C. Perry, his attorney, and the defendant's attorney were present. Inasmuch as Perry had filed a declaration in set-off alleging that the defendant owed him $1,150.73, it, was agreed to settle the case by extinguishing the claim that each had against the other. An agreement for judgment signed by both attorneys was filed in which it was recited that the following entry be made, ‘Judgment for the Plaintiff in the sum of $1.00, without costs, and Judgment satisfied.’ No attorney representing Mrs. Perry signed this agreement. At the time the agreement was made the existence of the above mentioned noted and mortgage was not known to Perry or his attorney, or to the defendant's attorney. Following the filing of the agreement the real estate attachment was discharged as to both plaintiffs.

On January 8, 1938, the defendant took steps to foreclose the mortgage, ³ and shortly thereafter the plaintiffs instituted the present proceeding. Perry did not know of the mortgage until foreclosure proceedings were commenced.

The decree of the court below was right. The defendant does not contend that the agreement for judgment and acknowledgment of its satisfaction was in any respect invalid. See Ansara v. Regan, 276 Mass. 586, 177 N.E. 671. On the contrary, the defendant concedes that the liability of Perry was extinguished by it. She asserts, however, that this had no effect on the liability of Mrs. Perry under the mortgage note given by her. We do not agree.

The satisfaction of the judgment against Perry operated as a discharge of the liability of his wife who was a codefendant. It is settled law that the satisfaction of a judgment against one of several coöbligors discharges the others. Cote v. New England Navigation Co., 213 Mass. 177, 180, 99 N.E. 972;New Bedford Institution for Savings v. Hathaway, 134 Mass. 69, 71,45 Am.Rep. 289;Savage v. Stevens, 128 Mass. 254;Holmes v. Day, 108 Mass. 563, 565:Brackett v. Winslow, 17 Mass. 153, 160;Gilmore v. Carr, 2 Mass. 171; Am. Law Inst. Restatement: Judgments, § 95; Williston on Contracts (Rev. ed.) § 337; Am. Law Inst. Restatement: Contracts, § 120(2). See also Vanuxem v. Burr, 151 Mass. 386, 388, 24 N.E. 773,21 Am.St.Rep. 458. The...