Waltham Co-Op. Bank v. Barry

• Decision Date: 27 November 1918
• Citation: 121 N.E. 71,231 Mass. 270
• Parties: WALTHAM CO-OP. BANK v. BARRY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 270

121 N.E. 71

WALTHAM CO-OP. BANK

v.BARRY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 27, 1918.

Appeal from Superior Court, Middlesex County; John F. Brown, Judge.

Suit for cancellation of marginal record of discharge of a mortgage by the Waltham Co-operative Bank against William J. Barry and others. From decree for complainant, defendants J. A. McGlinchey and the Pittsburg Plate Glass Company appeal. Decree as to appellants reversed, and bill dismissed.John L. Harvey and Wm. J. Bannan, both of Waltham, for appellants.

C. F. French, of Boston, for appellee.

BRALEY, J.

If Barry, the defendant mortgagor, had been the only party against whom relief is sought, the mistake of the plaintiff's treasurer in discharging the unpaid mortgage on the margin of the land records under the provisions of R. L. c. 127, § 34, as amended by St. 1908, c. 149, could be rectified by the decree for cancellation which was entered by the trial court. Swasey v. Emerson, 168 Mass. 118, 46 N. E. 426,60 Am. St. Rep. 368;Holbrook v. Schofield, 211 Mass. 234, 98 N. E. 97. But the defendants McGlinchey and the Pittsburg Glass Company after the discharge had been recorded, and without actual notice of the mistake, having attached the land on mesne process as the property of Barry in actions of contract which were pending when the bill was filed, the question for decision is whether their rights as attaching creditors are subordinate to the mortgage. The plaintiff appeared on the record at the date of the attachments to have been the owner of a mortgage which had been discharged under the statute whereby a discharge on the margin of the page where the instrument appears of record is given the same force and effect as a deed of release duly executed, acknowledged and recorded. While a by-law of the bank authorized the treasurer, or in his absence the president or vice president, to discharge a mortgage upon receipt of the amount, it is not alleged that the treasurer exceeded his powers or perpetrated a fraud upon the bank. The conditional limitation of the by-law was undisclosed, and the defendants rightly could rely on the record as conclusive evidence of the estate and title of their debtor. Welch v. Priest, 8 Allen, 165;Adams v. Pratt, 109 Mass. 59;Stark v. Boynton, 167 Mass. 443, 445, 45 N. E. 764;Livingstone v. Murphy. 187 Mass. 315, 319, 320, 72 N. E. 1012,105 Am. St. Rep. 400;Wenz v. Pastene, 209 Mass. 359, 95 N. E. 793. The defendants accordingly are innocent purchasers for value, and if judgment is recovered the lien of the...