Silva v. Shackford

• Decision Date: 16 June 1896
• Citation: 44 N.E. 532,166 Mass. 407
• Parties: DA SILVA v. TURNER. SAME v. SHACKFORD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 407

44 N.E. 532

DA SILVA

v.TURNER.

SAME

v.SHACKFORD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 16, 1896.

Appeal from supreme judicial court, Suffolk county.

Bills by Francisco Joze Da Silva against Edwin J. Turner and against Rutha E. Shackford and others. There were decrees for defendants, and plaintiff appeals. Decree in the first case reversed, and in the second case affirmed.

Francis A. Perry, for appellant.

Emmons & Emmons and Dana B. Gove & Sons, for appellees.

LATHROP, J.

These are two bills in equity,-the first to redeem a parcel of land in Boston from a sale on execution, and the second to redeem the same parcel from a mortgage, and, by an amendment to the bill, to redeem the land from a tax sale. The cases were referred by a justice of this court to a master, under a rule which directed him “to hear the parties and their evidence, to find the facts, and report the same to the court.” On the coming in of the master's report, the plaintiff moved that the master be directed to report to the court the evidence taken before him. This motion was denied. A motion was then made to recommit the report to the master for further findings of fact. This motion was also denied. Several objections and exceptions were taken by the plaintiff to the report, which were overruled. Decrees were then made dismissing each bill, with costs, and the plaintiff appealed to this court.

1. The master, under the rule, was not bound to report the evidence; and it was within the discretion of the single justice of this court to whom the motion was made to decline to order the evidence, or any part of it, to be reported. Bowers v. Cutler, 165 Mass. 441, 43 N.E. 188, and cases cited.

2. The motion to recommit to the master was for the purpose of a further hearing upon a point which was not fully passed upon by the master; but as this point is not, in our view of the case, material, as will appear later, the motion to recommit was properly denied.

3. Some of the objections and exceptions of the plaintiff relate to findings of the master on matters of fact. These we cannot revise, as the evidence is not before us.

4. The other questions arising in the case are fully presented by the master's report, and these we proceed to consider. The mortgage which the plaintiff, by his bill, seeks to redeem, the master finds, was never in fact executed by the plaintiff, and that the defendants claim through another mortgage executed by the plaintiff. The right to redeem the last-mentioned mortgage was considered by the master, as an amendment might possibly be made, or a new bill filed; and, as the parties have argued the case in relation to what has been found by the master to be the only mortgage executed, we proceed to consider the case in this aspect: The facts, as found by the master, are these: On July 31, 1891, the plaintiff executed a mortgage of the land in question (which was described as being in that part of Boston called “East Boston,” and was further described by metes and bounds) to Rutha E. Shackford, in consideration of the sum of $2,500. The condition was the payment of the sum of $2,500 in three years from date, with interest at the rate of 6 per cent. per annum, payable semi-annually, and with the privilege of paying $100 or more of the principal when interest was due. There was also a condition to pay taxes and assessments The mortgage containeda power of sale authorizing the mortgagee to sell the premises, for any breach of condition, “by public auction in said East Boston, first publishing a notice of the time and place of sale once each week for three successive weeks in some one newspaper published in said Boston,” and to “convey the same, by proper deed or deeds, to the purchaser or purchasers, absolutely and in fee simple.” It was further provided that such sale should forever bar the mortgagor, and all persons claiming under him, from all right and interest in the premises, whether at law or in equity. The plaintiff did not pay the taxes assessed upon the premises for the year 1892, and on October 12, 1893, they were sold by the collector of taxes for the city of Boston to one Cook. The fact that the taxes had not been paid constituted a breach of the condition of the mortgage, and in October, 1893, the mortgagee, for breach of condition, advertised the premises for sale in a weekly newspaper published in East Boston, having a circulation of at least 2,500 copies a week, according to the terms of the power. On November 6, 1893, the estate was sold by a duly-licensed auctioneer to one Wilder, the only bidder therefor, and a deed was executed to him by the mortgagee, which was duly recorded November 11, 1893. The master has found that Wilder was merely a nominal purchaser, and paid nothing, and we assume that he stands in no better position than the mortgagee. There was no positive evidence that the deed was actually delivered to Wilder, but this, since St.1892, c. 256, is immaterial. On November 9, 1893, Wilder conveyed the premises to the defendants Charles Anderson and John Anderson by deed recorded on November 11, 1893, and on the preceding day they had conveyed to them the title of Cook under the tax sale. The master has found that the Andersons took the deed from Wilder, and also the tax title, in good faith, for a fair consideration, namely, $3,500, and without any knowledge or suspicion of any infirmity in the title of Wilder or of Cook, if any there be, and that they entered into possession and made improvements. The first contention of the plaintiff is that the mortgagee had no power to sell under the mortgage, for the reason that the whole of the principal and interest was tendered before the sale. The master, on this point, reports as follows: “The plaintiff also offered some evidence that in May, 1893, he offered to pay the mortgagee, in person, the whole of the principal and interest, and that she declined the same; but the evidence was so conflicting and unsatisfactory upon this point that, if such fact becomes material in the final disposition of the case, I should wish to hear the parties again upon it.” It was upon this that the motion to recommit was made. We regard this as immaterial for the reason that the mortgagee was not bound to accept payment of the principal, or any part thereof, before the expiration of three years from the date of the...