Shadman v. O'Brien
| Decision Date | 01 April 1932 |
| Citation | 180 N.E. 532,278 Mass. 579 |
| Parties | SHADMAN v. O'BRIEN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Qua, Judge.
Suit by Alonzo J. Shadman against Harry M. O'Brien and others. From a decree for plaintiff, defendants appeal.
Affirmed.
L. R. Chamberlin and R. J. Cook, both of Boston, for appellee.
F. J. Bagocius, of Boston, for appellants.
This is a bill in equity by one who alleges himself to be mortgagee of certain premises by virtue of an absolute deed and an oral agreement for defeasance, to establish his right; determine the amount due to him; and to have declared null and void a note and mortgage given by him to the alleged mortgagor, an assignment thereof, a notice of possession taken by the assignee, and a foreclosure made by the assignee. The alleged mortgagor, who was also the purchaser at the foreclosure sale, and the assignee who foreclosed are the defendants. The case is before us upon appeal by the defendants from a decree which granted the prayers; established the amount due and secured by the absolute deed; and made orders for a sale of the interests of the parties and a disposition of the proceeds; with costs to the plaintiff against the alleged mortgagor. The evidence is reported.
On careful consideration of the evidence, we find no error in the decision of the trial judge upon the questions of facts involved. Certain facts are undisputed. The defendant O'Brien, in 1919, purchased a farm of some thirty acres at Sharon where he planted apple trees and raised hens. He paid $5,700, which included the assumption of a mortgage. He replaced this in 1925 by a mortgage to the Federal Land Bank at Springfield for $4,500, taking also shares in that bank in accord with its practice. He and members of his family had been patients of the plaintiff, a surgeon owning and operating a private hospital near Forest Hills in Boston. He was on friendly and familiar terms with the plaintiff, who put great faith in him and wished him to succeed financially with his farm. From time to time he borrowed from the plaintiff without giving security until in 1928 he wished further help. After discussion of his needs and prospects he obtained the loan and gave the plaintiff a note secured by a second mortgage on the premises for $5,600. The finding is justified that he requested that this mortgage be not placed on record. It was not recorded. His requests for aid continued. He made no payments on his indebtedness. The plaintiff was dissatisfied. In June of 1929, when O'Brien represented that he should have an especially fine crop of apples from his young trees, he made a deed of the premises to the plaintiff subject to the mortgage to the Land Bank. A contract was signed by which he was to live upon and manage the farm. All its running expenses were to be paid by the plaintiff who was also to allow O'Brien his living from the farm free and to pay him $110 a month wages. The plaintiff gave up O'Brien's note for $5,600; he let him have $1,000; he paid $79 ‘adjustments' upon the transfer of title; and he gave him a note for $11,500 secured by a second mortgage of the premises which provided for payment of interest at five and a half per cent per annum payable semiannually, and for payments of $1,500 on the principal with each six months' interest. O'Brien contended that this transaction was a sale to the plaintiff at the latter's request for an agreed price of $22,500. The plaintiff contended, the judge found, and we agree in the finding, that this was a transfer made at O'Brien's request and solicitation as security for all that was due from O'Brien to the plaintiff, who trusted O'Brien and believed that the mortgage note, really given without consideration, and the agreement were simply means of protecting O'Brien in the event of the plaintiff's death before O'Brien harvested his crops and realized enough to pay off his indebtedness. Sometime after O'Brien obtained the note, he placed it with the State Street Trust Company, which requested payment of the interest and first instalment of $1,500 when due by the terms of the note. On receiving this demand, the plaintiff asked an explanation from O'Brien who told him to ‘forget it.’ For a time he did. Still later O'Brien, who says he was indebted to Tompkins and that Tompkins was seeking payment, assigned the note and mortgage to the defendant Tompkins as security, promising to make payment on account when the plaintiff paid an installment. As no such payment came, Tompkins made entry to foreclose, advertised the sale for foreclosure and, in July, 1930, sold the premises by auction to O'Brien who bid $2,500 at the sale. Tompkins made a deed under the foreclosure to O'Brien, though neither claims that more than $1,000 was paid. No note or security was given for the balance. Thereafter Tompkins brought suit against the plaintiff for the $9,000 balance, in appearance, due as a deficit on the mortgage note. The plaintiff had been ignorant of the entry, the sale and the foreclosure. He then consulted a lawyer. This bill in equity followed. Neither defendant pleaded the statute of frauds.
[1] The evidence satisfies us, as it satisfied the judge who heard and saw the witnesses and whose findings would not be set aside unless clearly...
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