Sherwood v. Warren
| Decision Date | 01 March 1926 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | MARY McE. SHERWOOD & another v. CLARENCE A. WARREN & others. |
January 19, 1926.
Present: RUGG, C.
Subrogation. Dower.
Mortgage, Of real estate.
The owner of real estate subject to a mortgage gave a second mortgage thereon which subsequently was foreclosed by a sale at which the second mortgagee was purchaser. The interest thus purchased afterwards was sold at a sale upon an execution, obtained by the original mortgagor against the second mortgagee, to an attorney of the original mortgagor who took title as attorney and held it to secure payment of a debt owed him by the original mortgagor. A purchaser of the first mortgage then began foreclosure proceedings and, in a suit in equity, the attorney who had taken title as purchaser at the execution sale claimed a right to pay the amounts due upon the first mortgage and note and expenses of foreclosure and to be subrogated to the rights of the first mortgagee; and the wife of the second mortgagee claimed a similar right of
Subrogation by reason of her inchoate right of dower, based upon the interest which passed to her husband as purchaser at the sale in foreclosure of the second mortgage. Held, that the right of the attorney of the original mortgagor, as purchaser at the execution sale, to pay the first mortgage debt and to be subrogated to the first mortgagee's rights was paramount.
BILL IN EQUITY filed in the Superior Court on December 26, 1924, and afterwards amended, by Mary McE. Sherwood and Flora B Sherwood against Clarence A. Warren and Martin J. Griffin, seeking to enjoin the defendant Warren from proceeding with the foreclosure of a first mortgage given by the plaintiff to one Chandler and by him assigned to the defendant Warren, on certain premises at the corner of Franklin Street and Brookline Street in Cambridge; that Warren be ordered to transfer that mortgage to the plaintiffs or their order upon payment by them of amounts due on the mortgage note and reasonable expenses incurred in the foreclosure proceedings, and that the plaintiffs be subrogated to the rights of the defendant Griffin, who had purchased the equity of redemption of the premises at a sale in foreclosure of a second mortgage and upon whose rights in the premises the plaintiffs were about to levy under an execution issued on a judgment in their favor in an action against him. Also a
BILL IN EQUITY, filed in the Superior Court on April 1, 1925, by Warren, one of the defendants in the first suit, to reach and apply toward payment of a debt, alleged to be owed to the plaintiff by the defendants Mary M.C.E. Sherwood and Flora B. Sherwood, their interest in certain land purchased by the defendant Charles W. Bond, as attorney for the Sherwoods, at a sale of land of one Martin J. Griffin to satisfy an execution of the Sherwoods against him, and conveyed by the Sherwoods to Mr. Bond "as he is attorney" for the Sherwoods.
In the first suit on March 30, 1925, Annie Griffin, wife of the defendant Martin J. Griffin, alleging that she had an inchoate right of dower in the real estate subject to the defendant Warren's mortgage, petitioned for leave to intervene for the purpose of contending that the defendant Warren be ordered to receive from her the sum or sums of money secured by his mortgage and thereupon to deliver to her the promissory note thereby secured, and that the same be kept alive and enforced for her benefit. The petition to intervene was heard by Sisk, J., and was allowed.
In the first suit on July 6, 1925, Charles Wood Bond, alleging that he had purchased the interest of Martin J. Griffin in the real estate in question at a sale under execution issued upon the judgment in favor of the Sherwoods described in their bill, petitioned for leave to intervene in order to seek a decree whereby the mortgage and mortgage note, held by the defendant Warren, might be kept alive for his benefit as though he were an assignee in due course with all the rights of enforcement and transfer and all other rights that the defendant Warren had. The petition to intervene was heard by McLaughlin, J., and was allowed.
In both suits there were agreed statements of facts. Material facts are stated in the opinion. The suits were heard by McLaughlin, J., by whose order there was entered in the first suit a final decree adjudging the amount due the defendant Warren to be $7,388.79 and decreeing that after the intervening defendant Bond within thirty days had paid that amount with interest to the defendant Warren, the defendant Warren should surrender to the defendant Bond the notes secured thereby, possession of the mortgaged premises to be retained by the defendant Bond until he had been repaid that sum with interest thereon; and that, as to the plaintiffs Sherwood and the defendant Griffin, the suit be dismissed without costs. In the second suit a final decree was entered dismissing the bill with costs to the defendants.
In the first suit, the defendant Annie Griffin appealed. In the second suit the plaintiff Warren appealed.
C.A....
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