Phillips v. Vorenberg

• Citation: 259 Mass. 46,156 N.E. 61
• Parties: PHILLIPS v. VORENBERG et al.
• Decision Date: 04 April 1927
• Court: United States State Supreme Judicial Court of Massachusetts

259 Mass. 46

156 N.E. 61

PHILLIPS

v.VORENBERG et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1927.

Exceptions from Superior Court, Suffolk County; F. W. Fosdick, Judge.

Action of contract by William Phillips against Simon Vorenberg and others to recover deficiency after foreclosure and sale of mortgaged property. Motion for directed verdict by the defendant named was denied, and he excepts. Exceptions overruled.J. L. Hall, M. Jenckes, A. J. Peters, and H. L. Clark, all of Boston, for plaintiff.

Lee M. Friedman and P. D. Turner, both of Boston, for defendant.

BRALEY, J.

On January 28, 1904, the defendant borrowed of the plaintiff $70,000 for which he gave his promissory note, payable in three years from date with interest at three and three quarters per cent. semiannually, secured by a mortgage with power of sale, upon default, on his real property with buildings thereon numbered 151-159 Court street in the city of Boston. The jury could have found that the conditions of the mortgage were broken; that foreclosure followed on March 26, 1920; that a deed under the power was duly executed and delivered to the purchaser; and that the affidavit required by G. L. c. 244, § 15, was seasonably executed and recorded. It also could have been found that the purchase price of $46,000, after deducting the foreclosure expenses, was insufficient to satisfy the mortgage, and the present action is brought to recover an alleged deficiency of $26,337.12 with interest.

[1] The first ground of defense is, that the action is barred by G. L. c. 260, § 2, because not brought within six years after the cause of action accrued. It is, however, provided by G. L. c. 260, § 1, cl. 3, that if a promissory note is signed in the presence of an attesting witness an action may be maintained by the original payee if brought within twenty years from the date of maturity. The note in question purports on its face to be signed by the defendant as maker, with the word ‘Witness' in print, and the words underneath ‘George A. Sawyer’ appearing at the left of the defendant's signature. While the defendant denied the genuineness of these signatures, and required their proof at the trial (G. L. c. 231, § 29), there was plenary evidence that the respective signatures were genuine. ‘In order to constitute an attestation of a note, within the statute, the witness must put his name to it openly, and under circumstances which reasonably indicate, that his signature is with the knowledge of the promisor, and is a part of the same transaction with the making of the note.’ Drury v. Vannevar, 1 Cush. 276, 277. The question of what is competent evidence to establish this fact was considered in Tompson v. Fisher, 123 Mass. 559, 560, where the person whose name purported to be upon the note as an attesting witness testified at the trial, that:

‘The name looked like his handwriting; that he thought it was; that he could not tell under what circumstances it was [affixed]; that he had no recollection whatever about it; that, if he signed it, he must have seen the defendant sign. * * *’

[2] It was held, that although the burden of proof was on the plaintiff there was some proof of the due attestation of the note. It appears in the case at bar that Sawyer had died prior to the trial. But there was evidence that he drafted the mortgage which was executed by the defendant to whose signature his name appears as a witness, and he also as a justice of the peace took the defendant's acknowledgment that the mortgage was his free act and deed. It also could be found, that all these signatures, purporting to be his, were in his handwriting, and that the note and mortgage were contemporaneous. We are therefore of opinion that under all the circumstances this question was for the jury to whom it was submitted under instructions which did not as the defendant contends violate G. L. c. 231, § 81. The error of permitting the plaintiff to introduce evidence as to the practice or custom of Sawyer, a conveyancer of much experience, ‘to witness instruments which he prepared,’ if it be an error (see Mumford v. Coghlin, 249 Mass. 184, 188, 144 N. E. 283), caused no injustice to the defendant. Adams v. Dick, 226 Mass. 48, 57,115 N. E. 227;G. L. c. 231, § 132.

[3][4][5][6][7] The interest during the period from January 28, 1904, to July 28, 1912, was paid by the defendant either at the rate stated in the note or at an increased rate agreed upon by the parties. The defendant while the owner of the equity of redemption had the mortgage extended in 1907 at four and one quarter per cent. and it was again extended on July 28, 1910 at the rate of four per cent., and until further changed by agreement, this rate was the rate payable by the defendant. The instructions to the jury on the question of interest if the plaintiff recovered were correct. The defendant, however, on August 10, 1912, conveyed the equity to Fred L. Hewitt subject to the mortgage, existing leases, restrictions, and taxes assessed for the current year. But the deed did not contain a clause that the grantee assumed and agreed to pay the mortgage, and this transaction did not of itself discharge the defendant. Codman v. Deland, 231 Mass. 344, 121 N. E. 14. The deed not only was recorded, but the plaintiff had actual notice of the change in title as well as the subsequent conveyance on August 27, 1915, from Hewitt to George F. Williams who was the owner at the date of the foreclosure and who acquired title under the same conditions as stated in the deed to Hewitt. There was evidence that the interest paid by Hewitt was at the rate of four per cent. from July 28, 1912, to July 28, 1913, and four and one-half per cent. from July 28, 1913, to August 28, 1915, and that after the conveyance to Williams, the rate was reduced to four per cent. from August 28, 1915, to August 28, 1918. The interest thereafter paid by Williams was at the rate of five and one-half per cent. from August 28, 1918, to August 28, 1919. The plaintiff by his agent wrote the defendant August 13, 1914, when Hewitt owned the equity, that the taxes for 1913 were unpaid and the interest on the mortgage was in arrears and that foreclosure proceedings would be begun. The defendant replied that ‘the mortgage is good.’ ‘If the mortgage is good, that is the end of it.’ But no attempt to foreclose followed. The defendant at the date of the conveyance to Hewitt was the promisor. If he became a surety with the land as principal, the transformation must have been wrought after he parted with his title to the equity. While an agreement for extension need not be in writing (Brooks v. Wright, 13 Allen 72, 76), the deed to Hewitt as previously said conveyed the land by express terms subject to the mortgage, and the grantee did not thereby assume and agree to pay the debt, and he did not assume it by implication (Fiske v. Tolman, 124 Mass. 254, 26 Am. Rep. 659;Rice v. Sanders, 152 Mass. 108, 24 N. E. 1079,8 L. R. A. 315, 23 Am. St. Rep. 804). The defendant under the sixth paragraph of his answer introduced evidence to show a valid and binding agreement between Hewitt and the plaintiff whereby the mortgage was extended, and consequently the defendant became a surety, leaving the mortgagee to look to the land alone for payment of the debt. North End Savings Bank v. Snow, 197 Mass. 339,83 N. E. 1090. See Codman v. Deland, 231 Mass. 344, 347, 121 N. E. 14. The burden of proof was on the defendant to establish the extension. Haydenville Bank v. Parsons, 138 Mass. 53. The only evidence consisted of an entry on an envelope in which the mortgage and note were kept. It reads as follows: ‘Renewed for three years from July 28, 1913, at 4 1/2 per cent.’-and the testimony of Hewitt:

‘I had one, probably more than one, conversation with the plaintiff's agent, and arranged for, I won't say an extension, but I arranged for the mortgage then existing on the property should be allowed to remain, but as a part thereof I was required to increase the rate of interest one-half per cent.; that is, from 4 to 4 1/2 per cent. I cannot tell from memory whether the length of time it was allowed to remain was one year or three years or five. I should say a definite period was arranged...