Wareham Sav. Bank v. Partridge

• Decision Date: 14 September 1944
• Citation: 317 Mass. 83,56 N.E.2d 867
• Parties: WAREHAM SAV. BANK v. PARTRIDGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 83

56 N.E.2d 867

WAREHAM SAV. BANK

v.PARTRIDGE et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Sept. 14, 1944.

Bill by the Wareham Savings Bank against Malcolm F. Partridge and another for reformation of mortgage and of a certificate of title to mortgage land. From a decree dismissing the bill, plaintiff appeals.

Affirmed.Appeal from Land Court, Barnstable County; Fenton, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and WILKINS, JJ.

H. Williams, of Boston, and T. Otis, of Hyannis, for plaintiff.

F. B. Frederick and H. C. Perkins, both of Boston, for defendants.

LUMMUS, Justice.

This is an appeal by a mortgagee of registered land from a final decree dismissing its bill for reformation of its mortgage and of a certificate of title to the mortgaged land, so that certain land would be covered by the mortgage that was omitted from it because of fraud or mistake. The record on appeal contains ‘findings, rulings and order for decree’ filed by the judge before the entry of the final decree, and a report of the evidence under Rule 6 of the Land Court (1935), reported on the theory that that rule adopts among other rules Rule 76 of the Superior Court (1932). We assume in favor of the appellant, without deciding, that the equity practice prevailing in the Superior Court governs and is not restricted by G.L.(Ter.Ed.) c. 185 § 15. See G.L.(Ter.Ed.) c. 185, § 1(k), as amended by St. 1934, c. 67; Lynn Institution for Savings v. Taff, 314 Mass. 380, 50 N.E.2d 203.

Fannie E. Partridge, a widow, from whom the defendants derive title, owned a tract of land in Barnstable. The plaintiff's case is as follows. By reason of fraud of Mrs. Partridge, or a mutual mistake on her part and that of the plaintiff, or a mistake on the part of the plaintiff known to her (Mates v. Penn Mut. Life Ins. Co., 316 Mass. 303, 55 N.E.2d 770)-for the purposes of this case it being immaterial which-a mortgage taken by the plaintiff upon part of the tract owned by Mrs. Partridge failed to include the house and the remainder of the tract all of which was to be given and received as security. In 1935 she filed a petition in the Land Court to register title to the tract subject to the mortgage of the plaintiff as written. The plaintiff though notified failed to oppose the petition, and after the death of Mrs. Partridge the title was registered upon her petition in the names of her two sons, the present defendants, who were her heirs and devisees, subject to the mortgage of the plaintiff as written. Later the plaintiff discovered that it had not the security contracted for, and brought this bill.

We assume that the statutory provision for review provided by G.L. (Ter.Ed.) c. 185, § 45, is exclusive of all other remedies in the nature of review. See Baker v. Kemp, 299 Mass. 490, 13 N.E.2d 380. That provision gives a right to petition for a review ‘within one year after the entry of the decree,’ to a person who has been ‘deprived of land, or of any estate or interest therein,’ by a decree ‘obtained by fraud.’

We assume, further, that a bill like the present, brought within one year after the decree, could be treated as a petition for review under section 45. Commonwealth v. Wakelin, 230 Mass. 567, 571, 120 N.E. 209;Stoskus v. Stoskus, 315 Mass. 12, 16, 51 N.E.2d 967;Parry v. Parry, Mass., 56 N.E.2d 875.

We assume, further, that the statutory words ‘obtained by fraud’ require so called extrinsic fraud, that is, fraud in the procedural steps leading to the decree as contrasted with fraud in the case presented for adjudication. Such extrinsic fraud, in the absence of a restrictive statute like section 45, is on general principles ground for an injunction against the enforcement of a judgment or decree. Stephens v. Lampron, 308 Mass. 50, 30 N.E.2d 838, 131, A.L.R. 1516;O'Sullivan v. Palmer, 312 Mass. 240, 44 N.E.2d 958;United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93;Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 259, and cases cited, 261 note, 64 S.Ct. 997, 1008, 1009; Dowagiac Mfg. Co. v. McSherry Mfg. Co., 6 Cir., 155 F. 524;Toledo Scale Co. v. Computing Scale Co., 7 Cir., 281 F. 488, affirmed 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719. And we assume that the decree was ‘obtained by fraud’ within the statute. All these assumptions are made without decision.

Nevertheless fraud in obtaining the decree does not entitle the plaintiff to relief from the effect of a decree of registration unless such fraud caused the plaintiff to be ‘deprived of land,’ or some ‘estate or interest therein.’ Baker v. Kemp, 299 Mass. 490, 13 N.E.2d 380. If the plaintiff was deprived of any interest, it was an equitable...