Trustees of Smith Charities v. Connolly

• Decision Date: 21 October 1892
• Parties: TRUSTEES OF SMITH CHARITIES v. CONNOLLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 272

31 N.E. 1058

TRUSTEES OF SMITH CHARITIES v. CONNOLLY.

Supreme Judicial Court of Massachusetts, Hampshire.

October 21, 1892

The description of the land in the mortgage is as follows: "Bounded northerly by lands of Charles Dayton and Justin Thayer; easterly, partly by land of Charles Delano and partly by land of Connecticut River Railroad Company southerly, by land of the heirs of Dennis Ryan; and westerly partly by King's street, so called, and partly by land of said railroad company,--containing twelve and one half acres more or less, together with the buildings standing thereon. Title derived from Cephas Parsons and William Connolly. See Hampshire Registry of Deeds, books 226 and 258, pages 80 and 288." The demandants produced in evidence a mortgage purporting to be signed by Anson Harrington and witnessed by one Sarah Harrington. Sarah Harrington was not called to prove the execution of the mortgage. The demandants proved that their president had made inquiry for her in Northampton and searched the county records, but had not found or learned of her. The demandants' witness George Harrington testified that she was living in the state of New York. She had been at his house on a visit within three weeks, and had since returned home. The court ruled that the execution of the deed might be proved by secondary evidence, to which ruling the tenant excepted. The demandants then called the said George Harrington, who testified that he was the son of Anson Harrington, and had seen him write, and that the signature looked like his father's. He thought it was his father's signature, but he had not seen him write or been written to by him for more than 20 years, (he had been dead 14 years,) and would not swear that the signature was his. The demandants offered no evidence of the handwriting or signature of the said Sarah Harrington. The deed was then admitted in evidence, (the same is made part of the case,) and the tenant duly excepted to the ruling of the court admitting the deed upon proof of the foregoing facts without proof of execution by the said attesting witness, or proof of her signature if she could not be produced. It appeared that the mortgage was given to secure a loan of $2,500, payable in one year, with semiannual interest at 6 per cent.; that the rate of interest had been reduced to 5 per cent.; that the same had been paid to the present time except the last two installments, which were overdue. The demandants offered in evidence a deed to the tenant of the land described in the said mortgage of Anson Harrington, which deed contained an identical description of the locus, and also a recital that the grantee should assume and pay the mortgage. They also offered in evidence the deeds of two former owners, who are the same mentioned in the demandants' amended count. The description in these of the locus was, as to abuttals and boundaries, the same as that in the Harrington mortgage. There was no evidence offered to show that the tenant had ever been in possession of any land bounded as in these deeds. It was admitted by the demandants that no land of the Connecticut River Railroad had at any time abutted on or bounded the demanded premises, save as the railroad ran through the middle of the same and divided it. Except as to the railroad, evidence was offered which tended to show that the abutters named in the writ were correct. The demandants proved that a peaceable entry had been made in their behalf by their president upon the demanded premises.

It was proved that the trustees of the Smith Charities were a corporation, and kept a record of their acts, but no evidence was offered of any action or vote taken or recorded by them in relation to the foreclosure of this or other mortgages by action at law, or any authority given the president to act for them, except the following, passed at a meeting of the trustees held May 12, 1891: "Voted that the president of the trustees of the Smith Charities is hereby fully authorized to sign checks and drafts and do all business incident to the ordinary duties of the corporation." The president was the only one of the trustees present at the hearing. He testified that he had been a trustee for several years; that the amount due on the mortgage was $2,654.24 that he had brought the action; that the other trustees knew of this, and had informally and individually authorized the suit; that the president of the corporation is its general manager and chief executive officer of the business of the corporation, which was principally to keep the fund invested in mortgages and other securities, and make the payments directed by the will of ...