Porter v. Porter
| Citation | 236 Mass. 422,128 N.E. 795 |
| Parties | PORTER v. PORTER et al. |
| Decision Date | 23 November 1920 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Berkshire County; Nelson P. Brown, Judge.
Suit by William K. Porter against Fannie E. P. Porter and others, resulting in memorandum of findings containing findings of facts, rulings of law, and order for decree by superior court for complainant, and respondents except. Exceptions ordered sustained, and bill dismissed.
Frank H. Cande and Frederick M. Myers, both of Pittsfield, for complainant.
Mark E. Couch, of North Adams, for respondents.
This is a suit in equity, brought to set aside a sale of real estate made under the power contained in a mortgage. Flora M. Porter, owner of the real estate in question, on June 11, 1889, executed a mortgage thereon to the North Adams Savings Bank to secure the payment of a demand note for $3,500; she died intestate on March 8, 1893, leaving a husband, Arthur C. Porter, and three sons, William K. Porter (the plaintiff), John L. Porter, and Frederick A. Porter. Arthur C. Porter became tenant for life of the real estate covered by the mortgage, and the three sons became vested with the fee in the estate in remainder, subject to the life estate. Arthur C. Porter married the defendant Fannie E. P. Porter, on April 8, 1894. On June 17, 1911, there being a default in the performance of the condition of the mortgage, the mortgagee, under the power of sale, having duly advertised the real estate for sale, sold it to the defendant Fannie E. P. Porter, who was the highest bidder at the foreclosure sale, and the savings bank caused a deed of the property to be executed to the purchaser, which deed was duly recorded.
The case was referred to a master, who filed a report, and thereafter it was heard by a judge of the superior court upon the pleadings and the master's report. He filed a ‘memorandum of findings,’ wherein he recites that he finds the foreclosure and sale by the bank--
‘was collusive as between its agents and attorneys and Arthur C. Porter and his attorneys, and [was] not conducted in good faith as between said bank and the plaintiffs and with reasonable regard for the interests of the plaintiffs.’
He also included in the ‘memorandum of findings' certain rulings of law, among them one that the plaintiff was not guilty of laches, and ordered a decree to be entered, in accordance with the third paragraph of the bill, that the conveyance from the bank to Fannie E. P. Porter and all conveyances described in subsequent paragraphs of the bill be null and void as to the plaintiff. The case is before us on the exceptions of the defendants to the findings and rulings so made.
The right of a party to allege exceptions in any civil case in law or equity is given by R. L. c. 173, § 106, St. 1906, c. 342, § 3, and St. 1911, c. 212, and provides that--
‘Exceptions may be alleged by any party who is aggrieved by an opinion, ruling, direction or judgment.’
A finding of fact is in no proper sense an ‘opinion, ruling, direction or judgment.’ Accordingly there can be no consideration of the correctness of findings of fact in equity on exceptions; such findings can be reviewed only by appeal, provided the evidence is reported. McCusker v. Geiger, 195 Mass. 46, 52, 80 N. E. 648;Kennedy v. Welch, 196 Mass. 592, 594, 83 N. E. 11;Eaton v. Eaton, 233 Mass. 351, 369, 124 N. E. 37, 5 A. L. R. 1426.
A bill of exceptions presents for decision only questions of law.
The principal question for our decision is: Was the order for a decree setting aside the foreclosure sale, and the deed given by the bank to Fannie E. P. Porter, warranted as matter of law?
The alleged wrongful acts of the defendants are set forth in the sixteenth paragraph of the bill, which alleges that the bank did not comply with the conditions of the power of sale in the mortgage in making the sale; that the sale was irregular and void; that the bank and Fannie E. P. Porter and her husband, Arthur C. Porter, ‘colluded together to cause a foreclosure sale to be carried out in form without complying with the requirements contained in the power of sale in said mortgage, in order that the estate of your complainant and the said John L. Porter and Frederick A. Porter in said premises might be destroyed’; that all of the acts of the defendants and Arthur C. Porter, hereinbefore set forth, ‘were caused and attempted to be done with the intent and purpose aforesaid; that your complainant was in California at the time of said purported foreclosure sale, and had no knowledge of the attempted proceedings, or any opportunity to appear at said sale to protect his interests.’ It is to be observed that the bill does not allege in what respect the acts of the defendants were in fraud of the rights of the plaintiff, nor in what manner the foreclosure was invalid.
The master found that the mortgage was executed by Flora M. Porter and her husband to the bank for $3,500 on June 11, 1889, that the property was occupied by Mrs. Porter and her husband until her death in 1893, and that he occupied the premises until his death in 1917; that he married the defendant Fannie E. P. Porter, in 1894, and she has lived on the premises from that date until the present time. He further found that before May 26, 1911 (the date of the first publication of the notice of foreclosure), there was a default in the conditions of the mortgage, which default continued until June 17, 1911, when the mortgage was foreclosed; that notice of the foreclosure sale was published on May 26, June 2, and June 9, 1911, and that on June 17, 1911, the property was sold, and was bid in for the defendant Fannie E. P. Porter. The affidavit of notice of sale made by the treasurer of the bank, which is made a part of the report, shows that the mortgagee's notice of sale was published upon the dates named in the North Adams Herald, a newspaper published in North Adams, where the real estate is located. The master found:
That ‘the facts relating to the foreclosure as recited in the affidavit in the deed under power in power of sale mortgage are established by the evidence in this case,’ and that the
It also appears from the report that on February 1, 1912, Fannie E. P. Porter and her husband executed a note and mortgage to the North Adams Savings Bank for $2,970 upon the real estate covered by the mortgage in question and other lands owned by the grantors; that the indebtedness so secured existed before the foreclosure of the mortgage on June 17, 1911, and that Fannie E. P. Porter ‘had signed this note as an accommodation.’ On December 21, 1915, Fannie E. P. Porter deeded the...
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