Rockwell v. Kelly
| Decision Date | 28 February 1906 |
| Citation | 190 Mass. 439,77 N.E. 490 |
| Parties | ROCKWELL v. KELLY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Geo. Wm Estabrook, for appellant.
Eaton McKnight & Carver, for appellee Walsh.
Richard J. Lane, for appellee McHugh.
J. & J Ballantyne, for appellee Holmes.
Unless the liens of the respondents were dissolved by the bonds given by her predecessor in title, they are paramount to the mortgage under the foreclosure of which the plaintiff owns the premises, and the bill must be dismissed. It may be assumed, without deciding, that Hill, as assignee of the second mortgagee, had such an interest in the land, even if the conveyance by Hughes originally was voluntary, and therefore voidable by creditors, as to bring him within the provisions of Rev. Laws, c. 197, § 28, permitting a dissolution of the liens by giving bonds. Breed v Gardner, 187 Mass. 300, 72 N.E. 983. The purpose of this statute is to allow any one possessing an interest in the whole or any part of the realty to free his title from such an incumbrance sold to satisfy the lien.
While a proper bond dissolves it only as to the interest of the principal, leaving unaffected the right of other persons in the premises, yet to effectuate this purpose the statutory condition must appear in the instrument, which is to pay the lienor the amount fixed as the value of his legal or equitable ownership, or so much of the valuation as may be required to satisfy either the whole claim, or the proportionate part which the obligor's interest may be required to contribute. Taunton Savings Bank v Burrell, 179 Mass. 421, 60 N.E. 930. If the pecuniary value of the interest to be released is not ascertained by agreement, then proceedings may be had similar to those provided for the approval of bonds given to dissolve attachments, where the amount is determined by a magistrate having jurisdiction under Rev. Laws, c. 167, §§ 121, 122. The inquiry which the acting magistrate has to make is judicial, and cannot be dispensed with, even if a penal sum is named, as in the present case, which was in excess of the amount of each lien. But for the statute, the liens could not be dissolved in this manner, and while the bonds which were furnished may have been, and probably were, as ample security for the protection of the lienors as if this condition had been actually complied with, yet, the right to give them being a statutory remedy, to...
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