White v. Dodge

• Decision Date: 03 March 1905
• Citation: 187 Mass. 449,73 N.E. 549
• Parties: WHITE v. DODGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 449

73 N.E. 549

WHITE v. DODGE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1905

COUNSEL

Geo. C. Abbott and Frank O. White, for plaintiff.

Wm. H White, for defendants.

OPINION

KNOWLTON, C.J.

This is a bill in equity in which the female plaintiff, acting by her guardian, seeks to set aside a note of $1,591.65, given by her to the defendant Dodge, and by him indorsed to the defendant Conant, and also an assignment of a mortgage and note for $9,000, given to her by George B. White, and assigned by her to Dodge as collateral security for the first-mentioned note. The master to whom the case was referred found the facts in favor of the defendants upon nearly all the questions in issue. Exceptions to his report were overruled in the superior court, and a decree was entered for the defendants, from which the plaintiff appealed.

A careful reading of the very voluminous report of evidence shows no error on the part of the master, material to his decision that 'there is no ground for granting the relief prayed for in the plaintiff's bill.' There is nothing in the testimony that leads us to doubt the correctness of his finding that 'the defendant Conant was a bona fide purchaser of the said two notes and mortgage for value and without notice.' The affirmative evidence on this point is clear and convincing. The note of $1,591.65 was payable on time, and was indorsed to the defendant Conant before maturity. The note and mortgage for $9,000, which had been assigned by the plaintiff to Dodge as security when she made the first-mentioned note, were assigned by him to Conant as a part of the transaction when he transferred the other note.

The plaintiff's principal claim rests upon the alleged fraud of Dodge in obtaining the execution and delivery to him of these contracts. If he was guilty of fraud, as she alleges the title which he obtained was voidable by her; but it was sufficient to enable him to give a perfect title to a bona fide purchaser for value, before she took measures to avoid it. Rev. Laws, c. 73, §§ 69-74; Wheeler v. Guild, 20 Pick. 545, 32 Am. Dec. 231; Rowley v. Bigelow, 12 Pick. 307-312, 23 Am. Dec. 607; Hoffman v. Noble, 6 Metc. 68, 39 Am. Dec. 711; Moody v. Blake, 117 Mass. 23-26, 19 Am. Rep. 394. This elementary proposition of law is a complete answer to the plaintiff's chief contention.

The plaintiff says that the note secured by the mortgage was not negotiable, because there is a provision in the mortgage that the mortgagor may pay it, if he chooses, before its maturity. The note itself contains no such provision, and is, in terms and in law, negotiable. But if, considering both the note and mortgage, a purchaser who takes them together has notice that he does not acquire, under all circumstances, all the rights of a purchaser of ordinary commercial paper (see Strong v. Jackson, 123 Mass. 60, 25 Am. Rep....