State Realty Co. of Boston v. MacNeil Bros. Co.

• Decision Date: 08 June 1956
• Citation: 135 N.E.2d 291,334 Mass. 294
• Parties: STATE REALTY COMPANY OF BOSTON, Inc. v. MacNEIL BROS. COMPANY and another. MacNEIL BROS. CO. v. STATE REALTY COMPANY OF BOSTON, Inc. * Supreme Judicial Court of Massachusetts, Middlesex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 291

135 N.E.2d 291

334 Mass. 294

STATE REALTY COMPANY OF BOSTON, Inc. v. MacNEIL BROS. COMPANY and another.

MacNEIL BROS. CO. v. STATE REALTY COMPANY OF BOSTON, Inc. ^*

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 6, 1956.

Decided June 8, 1956.

Phillip Cowin, Boston, for State Realty Co. of Boston, Inc. Angus M. MacNeil, Somerville, for MacNeil Bros. Co. and others.

Before QUA, C. J., and RONAN, SPALDING and COUNIHAN, JJ.

QUA, Chief Justice.

These are two suits in equity. The first is a suit by the original plaintiff, hereinafter called State Realty, against the plaintiff in the second suit, hereinafter called MacNeil Bros., and another for an order in accordance with the Federal Soldiers' and Sailors' Civil Relief Act authorizing for closure of a mortgage given by MacNeil Bros. to Angus M. MacNeil, hereinafter called MacNeil, and subsequently assigned to State Realty, covering some twenty-one parcels of real estate containing about one hundred tenements in Somerville and Cambridge. The second suit is by MacNeil Bros. against State Realty for redemption from the same mortgage. The two suits were tried together, and the evidence is reported.

We deal first with certain preliminary matters.

At the outset we are confronted with a motion by State Realty to dismiss the appeals of MacNeil Bros. from the final decrees on the ground, among others, that MacNeil Bros. did not give the clerk an order for the preparation of the papers within ten days after the cases became ripe for final preparation and printing of the record, as required by G.L. (Ter.Ed.) c. 231, § 135, as amended by St.1941, c. 187, § 1. Even where, as here, both parties appeal each must give the order in writing for preparation of the papers. Turgeon v. Turgeon, 330 Mass. 402, 113 N.E.2d 821. Compare Schaffer v. Leimberg, 318 Mass. 396, 406, 62 N.E.2d 193, where the failure related to the payment of the estimated cost, and the holding of this court was in effect that the cost need not be paid twice. The affidavit presented to us by State Realty, taken with the docket entries, shows that the cases became ripe for final preparation and printing of the present record on February 23, 1955, when the trial judge finally determined what matter should be printed. Rule 2(F) of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 694. It is true that the docket entries appear to show that on May 6, 1955, one of the judges of the Superior Court made an order, purportedly under Rule 7, which might be construed as intended to extend the time for the filing of a designation by MacNeil Bros. until May 27, 1955, but this order was not made until after the time from February 23, 1955, allowed by G.L. (Ter.Ed.) c. 231, § 135, for ordering the preparation and printing of the record had expired. After the statutory period has once expired no order can be made having the effect of extending the statutory time. This is a matter of interpretation of § 135. Buchannan v. Meisner, 279 Mass. 457, 460-462, 181 N.E. 742; Stanwood v. Adams' Garage, Inc., 281 Mass. 452, 183 N.E. 846; Flood v. Grinnell, 286 Mass. 214, 189 N.E. 833; Royal Tool & Gauge Corp. v. Clerk of Courts for County of Hampden, 326 Mass. 390, 392, 94 N.E.2d 781; See Gifford v. Commissioner of Public Health, 328 Mass. 608, 618, 105 N.E.2d 476. There is nothing in Rule 7 that permits an order inconsistent with this statutory interpretation. MacNeil Bros. did not give its order for preparation of the papers within ten days after February 23, 1955. Its appeals must therefore be dismissed. However, this has no substantial effect upon the outcome of the case because the matters hereinafter dealt with are open on the appeals of State Realty and are not determined more favorably to MacNeil Bros. than in the court below. Turgeon v. Turgeon, 330 Mass. 402, 409, 113 N.E.2d 821.

There was no error in overruling the demurrer of State Realty in the second suit. The bill for redemption is somewhat inartificially drawn, but it sufficiently identiies the mortgage and the parties interested in it, alleges that the mortgage is upon property of the plaintiff, and offers to redeem. We do not see that anything more need appear upon the face of the bill. Moreover, the demurrer is to the whole bill and not to any part of it. Baker v. Paeff, 318 Mass. 366, 367-368, 61 N.E.2d 650; Collector of Taxes of Lowell v. Slafsky, 332 Mass. 700, 704, 127 N.E.2d 309.

We think there was no error in the overruling of State Realty's plea in the second suit. The plea is double, but we pass that point, especially as only the first part has been argued. The contention there is that the matter contained in the second suit, that is, MacNeil Bros.' claim for redemption from the mortgage, should have been set forth by way of counterclaim in State Realty's suit for an order authorizing foreclosure of the mortgage and not by way of independent bill, because of the provisions of Rule 32 of the Superior Court (1954) requiring that the 'answer, without cross bill, must set up any counterclaim * * * arising out of the transaction which is the subject matter of the suit, which might be the subject of an independent suit in equity,' and that 'No cross bill shall be filed.' The rule also contains a provision that the court 'in its discretion may strike out any counterclaim if if appears that the matter cannot conveniently be determined in the suit.' State Realty's suit was brought under St.1943, c. 57, as amended in § 1 by St.1945, c. 120, § 1. These statutes were passed in aid of the Federal Soldiers' and Sailors' Civil Relief Act, U.S.C. (1952 ed.) Title 50, Appendix, § 532 [52 U.S.C.A.Appendix, § 532]. The subject matter of State Realty's suit was merely the obtaining of a court order required by the Federal law before resort could safely be had to the means of foreclosure by entry and sale under power commonly employed for generations in foreclosing mortgages in this Commonwealth. It was not the purpose of the State statutes or of the Federal statute or of Rule 32 to require the bringing of a plenary suit such as is regularly employed in many States for the foreclosure of mortgages, a method seldom employed here. Morse v. Stober, 233 Mass. 223, 226, 126 N.E. 780, 9 A.L.R. 78; John Hancock Mutual Life Ins. Co. v. Lester, 234 Mass. 559, 563, 125 N.E. 594. See Old Colony Trust Co. v. Great White Spirit Co., 178 Mass. 92, 59 N.E. 673; Hoffman v. Charlestown Five Cents Savings Bank, 231 Mass. 324, 329, 121 N.E. 15. We do not doubt the power and duty of equity courts in this Commonwealth to protect the serviceman to the full extent required by Federal law, but we think it was the purpose of the State statutes hereinbefore cited to provide means of furnishing that protection without the abandonment of the simple methods of foreclosure in common operation and the substitution of long drawn out and expensive procedures to which we were not accustomed. For these reasons we think that a claim by a mortgagor for redemption and accounting need not necessarily be pressed by way of counterclaim to a bill by a mortgagee for a simple court order under a statute permitting him to proceed to foreclose by local methods. If this is not so, many foreclosures can be turned into prolonged accountings while the property deteriorates. At least it seems there is no reversible error in overruling a plea which sets up the procedural defense of failure to file a counterclaim that might well be struck out under Rule 32 before the hearing of the case. If a mortgagor should tender every cent due to a mortgagee while the latter was advertising a proposed foreclosure sale but before actual foreclosure by sale would the mortgagor be barred from maintaining his suit for redemption because he had failed to set up a counterclaim in the mortgagee's suit for authority to sell? We think not. We do not overlook the fact that a counterclaim was adjudicated in Lynn Institution for Savings v. Taff, 314 Mass. 380, 50 N.E.2d 203, but the question there was whether certain personal property was subject to the mortgage and the issue therefore related to the kind of order to be made by the court in permitting the sale. No questions of redemption and accounting were involved. See further Guleserian v. Pilgrim Trust Co., 331 Mass. 431, 432-434, 120 N.E.2d 193.

A fourth problem arises from an interlocutory decree made in the second case at an early stage in the litigation that the hearing on the merits proceed 'without any claim for waste [or] damages to the plaintiff [MacNeil Bros.] arising out of the entry ¹ and possession of the premises * * * by the defendant [State Realty] * * * or any evidence pertaining to the alleged waste' and that the plaintiff (MacNeil Bros.) 'reserves its right to press an action for waste or damages resulting from the entry and possession by the defendant * * * in any other action or actions.' State Realty appealed from this decree. It will be observed that this decree went beyond the mere order of presenting the evidence and purported to cut the matters of waste and damages entirely out of the case and to reserve those matters for determination in some future case or cases. It seems to us, however, that these matters were necessarily involved in and a part of the accounting in a suit for redemption, and that the course taken resulted in splitting the cause of action into parts and was beyond the power of the court. It deprived MacNeil Bros. of any credit for waste and damages in this case. Canning v. Shippee, 246 Mass. 338, 141 N.E. 79, and cases cited. Franklin v. North Weymouth Cooperative Bank, 283 Mass. 275, 279-280, 186 N.E. 641. Dearden v. Hey, 304 Mass. 659, 24 N.E.2d 644, 127 A.L.R. 1077. Derderian v. Union Market National Bank, 326 Mass. 538, 95 N.E.2d 552. The hearing was conducted in accordance with the interlocutory decree, and the error is of course reflected in the final decree. We shall have...