Ryer v. Gass
| Decision Date | 14 January 1881 |
| Citation | 130 Mass. 227 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | James B. Ryer v. William W. Gass & another |
Argued November 21, 1879
Suffolk. Bill in equity to redeem a mortgage of land in Boston. The case was heard by Ames, J., and reserved for the consideration of the full court, upon the following agreed facts:
On October 7, 1874, Michael O'Connor, who was seised in fee of the estate in question, mortgaged the same to William B Tyler to secure the payment of $ 5000 in one year; and that mortgage was subsequently assigned to Lorin L. Fuller, who assigned the same to William W. Gass, one of the defendants on July 25, 1878, after $ 3000 had been indorsed on the mortgage note as hereinafter set forth. O'Connor, on October 7, 1874, made a second mortgage of the estate, subject to the first mortgage, to Amelia Baldwin, to secure the payment of $ 2000 in one year; and this mortgage was subsequently assigned to, and is now held by, the plaintiff.
Both of these mortgages were duly recorded, and are found next to each other upon the registry of deeds for Suffolk county; and by a search with ordinary diligence of the record of said registry of deeds, the second mortgage would have been discovered.
After the execution of the mortgages, O'Connor conveyed the estate to his son, John C. O'Connor, by deed duly recorded, which contained the statement that the estate was subject to mortgages amounting to $ 7000. On July 1, 1875, Charles H. Gass, the other defendant, lent to Michael O'Connor $ 3000 for thirty days; and, to secure the payment thereof, Michael procured John C. O'Connor to convey the estate to Charles H. Gass in fee by warranty deed, containing the covenant that the premises were "free from all incumbrances, except a mortgage of five thousand dollars, which forms part of the foregoing consideration."
Charles H. Gass took the deed without making any examination of the title to the estate, and without any information, except such as may be presumed from the fact of the record, that the estate was subject to any mortgage or incumbrance besides the mortgage of $ 5000. Both of the mortgages were wholly unpaid at the time Gass took his deed, and the loan by him to O'Connor has never been paid.
On November 1, 1877, Charles H. Gass paid to Fuller, who then held the first mortgage, $ 2000, which, by direction of Gass, was indorsed on the mortgage note, and Fuller, in consideration thereof, agreed to reduce the rate of interest thereon to six percent from and after October 1, 1877; and on April 20, 1878, Charles H. Gass paid the further sum of $ 1000, which, by his direction, was likewise indorsed on the note. At the time of these two payments, Charles H. Gass had not made any examination of the records, and was not aware of the existence of the second mortgage, until July 25, 1878, when he was told of it. On that day, he paid Fuller $ 2000 and interest thereon. being the balance due on the first mortgage, and, at his request, Fuller assigned the mortgage and note, with indorsements of payments thereon, to William W. Gass, who now holds the same in trust for Charles H. Gass, his brother.
The plaintiff was not aware until a few days before bringing this bill that the first mortgage had been assigned to William W. Gass, or that Charles H. Gass was ignorant of the existence of the second mortgage. The last-named mortgage was assigned to the plaintiff in November 1876. The value of the estate has so much depreciated that it is now not worth the original amount of the first mortgage.
The plaintiff, before bringing this bill, tendered to William W. Gass $ 2000 and all interest due thereon; but the tender was refused, Gass contending that the plaintiff was only entitled to redeem on payment of $ 5000 and interest thereon.
Plaintiff redeemed only upon the payment of the original mortgage, with interest.
W. E. L. Dillaway, for the plaintiff.
C. Blodgett, for the defendants.
It is well settled that a written document...
To continue reading
Request your trial
-
Bowling v. Garrett
...also, Smith v. Roberts, 91 N.Y. 470; James v. Morey, 2 Cow. (N.Y.) 246; Crosby v. Chase, 17 Me. 369; Bean v. Boothby, 57 id. 295; Ryer v. Gass, 130 Mass. 227. generally, when it is to the advantage of the mortgagee to preserve his mortgage title, no merger takes place. Forbes v. Moffatt, 18......
-
Bensieck v. Cook
...to a payment of the mortgage and left Cook's title clear. Jones on Mortgages [4 Ed.] sec. 864; Lappen v. Gill, 129 Mass. 349; Ryer v. Gass, 130 Mass. 227; Bank McKenney, 78 Mo. 442; Strong v. Converse, 8 Allen, 557-559; Butler v. Seward, 10 Allen, 466; Bemis v. Call, 10 Allen, 512. (3) "If ......
-
Smith v. Cooley
...Fountain, 61 Iowa, 512, 14 N. W. 220, 16 N. W. 534; Johnson v. Walter, 60 Iowa, 315, 14 N. W. 325; Lappen v. Gill, 129 Mass. 349; Ryer v. Gas, 130 Mass. 227. The possession by the maker of a note is prima facie evidence that the note has been paid. Kneeland v. Miles, 24 S. W. 1113; Reynolds......
-
Lawlor Corp. v. FDIC
...first mortgage. "A court of equity will go behind the form of a transfer to reach the substantial merits of the case". Ryer v. Gass, 130 Mass. 227, 229 (1881). The crucible of a trial will determine whether the Bank and URDAC were involved in a scheme to prevent Lawlor from reaping the bene......