Weinberg v. Brother

• Decision Date: 07 March 1928
• Citation: 160 N.E. 403,263 Mass. 61
• Parties: WEINBERG et al. v. BROTHER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 61

160 N.E. 403

WEINBERG et al.

v.BROTHER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1928.

Appeal from Superior Court, Suffolk County; Marcus Morton, Judge.

Bill by Morris Weinberg and others against D. Brother and another. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

M. Z. Kolodny, of Boston, for appellants.

A. A. Tucker, of Boston, for appellees.

SANDERSON, J.

This is a bill to reach and apply a mortgage note secured by a mortgage on real estate, standing upon the records in the name of the defendant David Brother, in payment of a judgment debt which he owes the plaintiff. The judge who heard the case made these findings:

‘On December 17, 1925, the defendant Di Pietro gave a promissory note in the sum of $1,900 to the order of David Brother, and as security therefor a mortgage to said Brother. * * * This mortgage was duly recorded and never discharged of record. David Brother paid no consideration for the note or mortgage. Celia and Abraham Brother owned the property in question and deeded it to Di Pietro, who, at their request, gave a mortgage back to the defendant, David Brother, as a straw. On June 1, 1926, David Brother assigned the note and mortgage to Abraham Brother, in accordance with a previous understanding between the parties. The assignment of the mortgage was never recorded. At the time of the bringing of the bill, the defendant, David Brother, had no interest of any sort in the note and mortgage. I rule that under the circumstances the note and mortgage cannot be reached in payment of the plaintiff's claim. The mortgage cannot be attached in an action at law, as real estate, and the plaintiff can reach only by the bill such interest as the defendant, David Brother, had in the note and mortgage. The bill should therefore be dismissed with costs.'

The bill was filed February 21, 1927, and a restraining order was issued. At that time the note had been transferred to the true owners, who are not parties, and the mortgage had been assigned to them.

[1] Upon the facts found, the plaintiff could not, by a bill to reach and apply, deprive the owners of their interest in the note. The mortgage is merely security for the note. As the note had been transferred to the real owner, the defendant would hold the mortgage in trust for the owner, even if there had been no assignment of it. Wolcott v. Winchester, 15 Gray, 461;Morris v. Bacon, 123 Mass. 58, 25 Am. Rep. 17. The bill to reach and apply is in the nature of an equitable trustee process. See Phoenix Ins. Co. v. Abbott, 127 Mass. 558, 560;Russell v. Milton, 133 Mass. 180, 182. The plaintiff, by making the equitable...