Smith v. Smith

• Decision Date: 13 January 1875
• Citation: 117 Mass. 72
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Nathan Smith & another, executors, v. James J. Smith

117 Mass. 72

Nathan Smith & another, executors, v. James J. Smith

Supreme Court of Massachusetts

January 13, 1875

[Syllabus Material] [Syllabus Material]

Middlesex. Writ of entry to recover a parcel of land in Newtonville, of which the plaintiffs alleged seisin in mortgage. Plea, nul disseisin, with a specification of a discharge of the mortgage. Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions in substance as follows:

Edward Page, who died in 1872, conveyed the demanded premises to Asa T. Ring, September 1, 1857; and on the same day Ring conveyed the same premises to Page in mortgage to secure the payment of a note for $ 2100, on three years, with interest payable semi-annually. On September 19, 1857, Page assigned the mortgage and note to the Massachusetts Charitable Society; and, in the habendum clause of the assignment, appeared the following: "As collateral security for the payment of a note made by me, the said Page, to the said Massachusetts Charitable Society, on August 13, 1852, for the sum of six thousand dollars, subject, nevertheless, to the right and equity of redemption of the within named Ring, his heirs and assigns in the same." The mortgage and assignment were recorded September 22, 1857. Under date of November 26, 1859, the following entry was written upon the margin of the record of the mortgage: "Cambridge, Nov. 26, 1859. The Massachusetts Charitable Society, the assignees of this mortgage deed, acknowledge to have received full payment and satisfaction of this mortgage, and do, therefore, hereby cancel and discharge the same. Samuel H. Hunneman. Witness, Charles B. Stevens." The following memorandum appears on the margin, but when and by whom made does not appear: "See an assignment to N. Smith, January 14, 1860, Book 832, Page 415."

On or before November 26, 1859, Edward Page paid his note for $ 6000 to the society; and, by vote of the corporation, the president and secretary were authorized to discharge the mortgage on other land by which it was secured. "Boston, November 25, 1859. The Society voted that the President and Secretary are hereby authorized to cancel the mortgage of Edward Page, upon receipt of the principal and interest." No mention of the collateral mortgage was made in the vote of the corporation; but, by mistake, the president discharged both the principal and collateral mortgage. The $ 2100 mortgage was not paid to the society, and it should have been reassigned to Page. Page held the original Ring mortgage and note; and, not knowing of the discharge, sold and assigned it to Nathan Smith, the plaintiffs' testate, January 14, 1860; and that assignment was recorded January 17, 1860.

On November 25, 1857, Ring conveyed the equity to Charles P. Shattuck, "subject to two mortgages; one originally given to said Page for twenty-one hundred dollars, and one to the Newton Mututal Loan and Fund Association for twelve hundred and seventy-two dollars."

The mortgage of $ 1272 was discharged November 25, 1857, on the margin of the record. On January 6, 1863, W. F. Davis, Shattuck's assignee in insolvency, conveyed to Francis A. Shattuck "subject to a mortgage for twenty-one hundred dollars with interest thereon." On July 20, 1866, Shattuck conveyed to Henry J. Darling "subject to a mortgage of twenty-one hundred dollars to said Page, which the grantee assumes and agrees to pay." On August 27, 1867, Darling mortgaged to Julia C. Barnard for $ 2900, free from incumbrances, "except a mortgage for $ 2100." On September 18, 1872, Darling conveyed to the defendant "subject to two mortgages amounting to five thousand dollars."

On February 20, 1873, the Massachusetts Charitable Society executed and delivered a paper to the plaintiffs, as executors, reciting the $ 6000 mortgage from Page; the assignment of the Ring mortgage to it, as collateral; the payment of Page's indebtedness to it, and the discharge of the collateral mortgage of $ 2100, by the president of the society, at the same time he discharged the principal mortgage; acknowledging that the discharge of the collateral mortgage was a mistake, and without right or authority from the society; disclaiming and denying the authority of its president to discharge the mortgage assigned to it as collateral, and in consideration of the payment of the said $ 6000 mortgage,...