Russell v. Barstow
| Decision Date | 25 February 1887 |
| Citation | 10 N.E. 746,144 Mass. 130 |
| Parties | RUSSELL v. BARSTOW and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.D. Adams, for plaintiff.
The plaintiff takes his title from Edmund Parker under Parker's mortgage to David Adams, which was foreclosed by sale under the power therein by the Andover Savings Bank assignee, and therefore has the same estate Parker had to-wit, at least the equitable estate. The defendant Barstow derives her title under the claimed foreclosure of the mortgage of Parker to Osgood, in 1846, and has the same and no other title than was thereby acquired by Caroline H Savage, to-wit, at most the mere legal estate, charged with a trust in favor of Parker, and her grantee holds the same in trust for the plaintiff, who is Parker's grantee. If Parker--had the fact of the assignment of said Osgood mortgage, and its alleged foreclosure, become known to him--could have maintained a bill to set aside and annul its effect as a foreclosure of said mortgage, cannot Parker's grantee also maintain a bill for the same purpose, and to set aside all conveyances based upon it in favor of parties not being bona fide purchasers? And Barstow is not a bona fide purchaser, for she had notice of complainant's title when she purchased. The legal rights of all the parties may be protected by one suit in equity; but at law, against the defendant Barstow, the plaintiff could only have judgment for the land subject to the other claims upon it. There is jurisdiction in this case on the ground of a trust. The bill discloses a resulting trust, or trust by operation of law. Livermore v. Aldrich, 5 Cush. 431; Blodgett v. Hildreth, 103 Mass. 484; Childs v. Jordan, 106 Mass. 321; Peabody v. Tarbell, 2 Cush. 226. The plaintiff is entitled to a conveyance of the legal estate. Any entry that the defendant Barstow may have made relates only to the legal, and not to the equitable, estate. This is not a case of a petition for granting title under Pub.St. c. 176. Clouston v. Shearer, 99 Mass. 209-211. The bill alleges facts which constitute fraud. If the $800 mortgage purchased by Caroline H. Savage never was foreclosed, by reason of fraud, payment of the debt, waiver of entry, or other cause, then no title passed to the defendant Ellen F. Barstow. Lawrence v. Fletcher, 8 Metc. 153, 164. Of the jurisdiction of this court to set aside conveyances in cases of fraud there can be no question. Pub.St. c. 151, § 2, cl. 12; Whittemore v. Cowell, 7 Allen, 446; Hubbell v. Currier, 10 Allen, 333, 336; Dodd v. Cook, 11 Gray, 495; Peabody v. Flint, 6 Allen, 52, 57; Glass v. Hulbert, 102 Mass. 24, 39; Campbell v. Dearborn, 109 Mass. 130, 142. The court has jurisdiction, also, under Pub.St. c. 151, § 2, cl. 6; Hubbell v. Currier, supra. "A bill is not multifarious where one general right is claimed by the plaintiff, although the defendants may have separate and distinct rights. Dimmock v. Bixby, 20 Pick. 368; Robinson v. Guild, 12 Metc. 323, 328.
If said $800 mortgage was not foreclosed by reason of payment, waiver of entry, mistake, or other cause, then the plaintiff ought to be allowed to redeem. See Joslin v. Wyman, 9 Gray, 63; Lawrence v. Fletcher, 8 Metc. 153, and 10 Metc. 344; Phelps v. Hendrick, 105 Mass. 106, 107. The only remedy for a mortgagor, or his assignee, after the payment of the debt, if the mortgagee, having entered for condition broken, refuses to relinquish the possession of the mortgaged premises, is by bill in equity. Parsons v. Welles, 17 Mass. 419; Wade v. Howard, 11 Pick. 288, 296. The payment of the mortgaged debt, after condition broken, does not extinguish the legal title of the mortgagee. The remedy of the mortgagor, or those under him, in such case, is bill in equity. Howard v. Howard, 3 Metc. 548; Pub.St. c. 151, § 2, cl. 1. Failure to make a tender only involves the question of costs. Gerrish v. Black, 113 Mass. 486. This court has power to allow an amendment of a bill in equity at any stage of the case. Crease v. Babcock, 10 Metc. 525, 529; Merchants' Bank v. Stevenson, 7 Allen, 489, 490. A valid objection to a part of the claim made in a bill in equity will not sustain a demurrer to the whole bill. Robinson v. Guild, 12 Metc. 323; Dimmock v. Bixby, 20 Pick. 368.
J.T. Wilson, for Ellen F. and Norman G. Barstow.
Pub.St. c. 176, provides that any person in possession of land may file a petition for the purpose of quieting his title. The complainant, not being in possession of said three-acre lot, has no rights under Pub.St. c. 176. Bowditch v. Gardner, 113 Mass. 315; Tompkins v. Wyman, 116 Mass. 558; India Wharf v. Central Wharf, 117 Mass. 504. The complainant's rights, if he has any, can be determined at law, and therefore the demurrer should be sustained, and bill dismissed.
Morse & Allen, for defendants C.H. Savage, A.W. Savage, and Stephen M. Allen.
This is a bill to quiet a title to a piece of property of which one of the defendants is in possession, and on which defendants Savage hold a mortgage. It is not alleged that Allen has now or ever had any interest of record, or that he ever claimed any title or interest in the three-acre piece in question. Under these circumstances we submit the bill cannot be maintained. Pub.St. c. 176, § 1, in relation to quieting titles by petition, in terms provides that the petitioner must be in possession of the property. Although proceedings under this statute are not the only remedy, the reasons for the provision, where relief is sought by petition, are equally weighty where the proceedings are in equity. In all cases where this court has granted the relief upon a bill in equity, it has not only appeared that plaintiff was in possession, but the fact has been emphasized by the court in its opinion. Burns v. Lynde, 6 Allen, 305; Clouston v. Shearer, 99 Mass. 211; Sullivan v. Finnegan, 101 Mass. 447; Russell v. Deshon, 124 Mass. 342. The court has repeatedly refused to remove a cloud where the plaintiff was out of possession. Pratt v. Pond, 5 Allen, 59; Bassett v. Brown, 100 Mass. 355; Swamscott Machine Co. v. Perry, 119 Mass. 123; White v. Thayer, 121 Mass. 226. Plaintiff must try his title at law. If the relief prayed for was granted, it would not settle the controversy, or put the plaintiff in possession. He would still be obliged to bring a writ of entry. Moreover, the title held by Barstow, which is sought to be affected by decree, may not be the only title under which he has a right to possession. Aside from these considerations, the bill does not set forth a cause of action; it is founded on a proposition which we contend is unsound in law. Under no circumstances can relief be sought against defendant Allen.
OPINION
The plaintiff brings his bill to remove a cloud upon the title to a three-acre lot which he claims to own. He alleges that the defendant Ellen F. Barstow is vexatiously hindering and preventing him "from building on said lot, or from otherwise improving or using it; that the acts and pretenses of the respondent Ellen create a cloud or suspicion on the plaintiff's title, and he is vexatiously and injuriously affected thereby; that the parties interested are living, and it is desirable the cloud upon the title be removed while the parties in interest are living, and can testify in regard to it." He also alleges that the defendant Ellen F Barstow, for the...
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