Sandler v. Silk

• Decision Date: 03 January 1930
• Citation: 169 N.E. 431,269 Mass. 562
• Parties: SANDLER v. SILK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 562

169 N.E. 431

SANDLER

v.SILK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 3, 1930.

Appeal from Superior Court, Suffolk County; E. B. Bishop, Judge.

Suit by Fannie Sandler against Max Silk and others. From a final decree dismissing bill, plaintiff appeals. Affirmed.

Thomas H. Mahony and Harry E. Ehrlich, both of Boston, for appellant.

Samuel Sigilman, of Boston, for appellees.

CROSBY, J.

On or about March 22, 1924, the plaintiff brought an action in the Superior Court against the defendants Smith and Marcus to recover damages for personal injury, and an attachment was made of all the real estate owned by Smith and Marcus in Suffolk County. The defendants were defaulted and damages were assessed by the court in the sum of $3,000 and $30.70 costs of suit. An execution issued which was delivered to the sheriff of Suffolk County and a seizure of the real estate was made on January 26, 1928, on the attachment made March 25, 1924. The execution remains unsatisfied. A demurrer to the bill was filed by the defendant Trachtenberg, and was sustained as to paragraphs 8, 9, 10, 11 and 13; no appeal was taken by the plaintiff from the order sustaining the demurrer.

The trial judge in the present suit at a hearing on the merits stated that the defendants admitted at the trial that on January 26, 1928, notice of the sheriff's sale was published in a Boston newspaper, of the right, title and interest which the defendant Smith had in a certain parcel of land situated in Boston, a particular description of which was set forth in the notice of sale; and that the defendants at the trial admitted the truth of the allegations contained in the seventh paragraph of the plaintiff's bill which is as follows: ‘That at the time said attachment was made the said property stood in the name of said Thomas M. Smith, subject to a first mortgage of $4000, at that time held by Sumner Robinson, Trustee, and recorded in Suffolk Registry, book 4529, page 49, and a second mortgage from said Smith to said Harry Marcus, dated July 16, 1923, for $1000, payable on demand, and recorded with Suffolk Registry, Book 4489, page 182, which said second mortgage on or about July 24, 1924, was assigned by said Marcus to one Nathan Lewis, and recorded in said Registry, book 4601, page 12, and subsequently assigned by said Lewis to said Max Silk, on October 22, 1926, recorded in said Registry, book 4845, page 346, and still later assigned by said Silk to said Samuel Tefft, on October 25, 1926, and recorded in said Registry, book 4845, page 346.’

After the attachment was made a third mortgage was placed upon the property by Smith to the defendant Tefft on October 21, 1926, in the sum of $3,500, and was duly recorded. Thereafter on October 25, 1926, a fourth mortgage was placed upon the property by Smith to the defendant Silk and was duly recorded.

The judge found, in accordance with the twelfth paragraph of the bill, that Trachtenberg ‘is a straw holder of title’ for Silk and has no interest in the property, and Silk is the owner of the equity, and the holder of any interest or title nominally held by Trachtenberg. In accordance with the fourteenth paragraph he found that the plaintiff by registered mail notified the defendant Tefft and his attorney Rubin of the proposed sheriff's sale, and that the plaintiff's attorney was told by Rubin that the second mortgage would not be foreclosed without notification to the plaintiff.

The bill alleges in part as follows: ‘16. That on January 21, 1928, the said Tefft, without notice to your petitioner or any junior lien holder, undertook and purported to foreclose said second mortgage, and, at an alleged foreclosure sale on January 21, 1928, said property was conveyed to himself for $1200, said deed being recorded in said Registry February 10, 1928, book 4977, page 26. 17. That on January 21, 1928, said Tefft made an entry upon the said premises under and by virtue of said second mortgage so assigned to the said Tefft for the purpose of foreclosing the same, and on February 10, 1928, the said Tefft recorded with said deeds an Evidence of Possession, setting forth that he had made said entry under and by virtue of said second...