Whiting v. Wellington
| Decision Date | 31 January 1882 |
| Citation | 10 F. 810 |
| Parties | WHITING v. WELLINGTON. |
| Court | U.S. District Court — District of Massachusetts |
J. G Abbott and S. A. B. Abbott, for demandant.
B. F Butler, for tenant.
Real action to recover certain lands in Reading, Massachusetts tried upon agreed facts. The tenant, Wellington, being seized in fee of the demanded premises mortgaged them in 1874 to the Reading Savings Bank to secure his note for $1,800, on demand, with interest. The debt has not been paid, and therefore the condition of the mortgage has been broken. In January, 1879, Nathan P. Pratt, the treasurer of the said savings bank, executed an assignment of the mortgage in the name of the bank, and in due form, and indorsed the note to one Kimball, who paid him the full amount of the note, with interest. As part of the same transaction Kimball bought certain other notes and mortgages, amounting to some five or six thousand dollars. Kimball was acting for the Appleton National Bank, and gave Pratt a receipt, signed by him as president of said national bank, in which he agreed to return and reassign the notes and mortgages upon repayment of the amount paid and interest within six months. The assignments were to Kimball personally.
The Appleton bank has taken no action concerning any of these mortgages. Kimball himself paid that bank the full amount of money advanced for them, and afterwards assigned the note and mortgage of Wellington to the plaintiff, for value, March 25, 1879.
March 19, 1879, the Reading Savings Bank failed and stopped payment, and its affairs are now in the hands of receivers appointed by the supreme court of Massachusetts. It was discovered about this time that Pratt had fraudulently disposed of nearly all the assets of the savings bank, and had concealed his fraud by leaving on the files forged duplicates of the mortgages, and other evidences of debt and title so disposed of. This mortgage was a part of those assets, and Pratt converted to his own use the money which Kimball had paid for it. All this was unknown to the trustees of the bank.
Before and at the time of executing the assignment to Kimball, Pratt was the secretary of said savings bank, and the officer who kept and had charge of its records, and the records of its board of trustees, and in order to prove his authority in the premises he delivered to Kimball a copy of a vote of the trustees as follows:
It is agreed, if competent to be proved against the demandant's objection, that although the certificate was a true copy of the record, the vote, as passed, did not contain the word 'assign,' but the record had been skillfully altered by Pratt, or with his knowledge, at some time before the assignment to Kimball; and the forgery had not
been discovered by the trustees, who had been changed from time to time by death, resignation, etc.
The trustees had a committee of investment, and transactions like that with Kimball were usually passed upon by that committee before action of the trustees or the treasurer. This was a general usage of savings banks, and Kimball was acquainted with the usages of those institutions. Kimball believed the copy to be a true one, and took the assignment upon the strength of it. The committee of investment kept no record.
This action is brought to try the right of possession to the described parcel of land in Reading. Under the statutes of Massachusetts (Gen. St. c. 140, Sec. 3 et seq.) a mortgage may have this action against the mortgagor, after condition broken, for possession of the premises, and either party may require that a conditional judgment shall be entered ascertaining the amount of the debt and awarding possession to the demandant unless the tenant shall pay the amount so ascertained within two months. There is no order to pay the money, and if it is not paid there can be no execution to recover it, but a writ of possession issues, and the tenant has three years from the execution of this writ within which to redeem the premises. This action is a substitute for an entry upon the land for the purposes of foreclosure, plus a judicial determination of the right of entry. If it were a substitute for a bill in equity to foreclose, it is doubtful whether this court could entertain it, because our equitable jurisdiction is independent of any remedies given by the states in the nature of actions at common law for enforcing equitable rights. This is an action to try the right of possession; and if any part of the statute is not in force here it is merely that which gives the tenant an equitable stay for two months on certain terms. The tenant himself has moved for that stay in this case if the title should be found against him, and cannot well complain if it should be ultra vires.
Kimball, as a purchaser in good faith without notice, obtained a title by estoppel against the savings bank by virtue of the certificate of its recording officer that a certain vote was found upon its records. I can take judicial notice that such a certificate is the ordinary proof of authority given and received when land is conveyed by corporations. It is, therefore, within the usual power and duty of a recording officer to make such a paper.
If the case turned upon the record itself, somewhat different and, perhaps, more difficult questions might require to be answered; but it is immaterial whether there was any vote or any record. The records were the private memoranda of the bank, to which Kimball had no right to demand access. The estoppel arises from the certificate.
The authorities upon estoppels in pais are numerous and increasing. In a recent case in England a statute declared that unless certain things were done no shares of a joint-stock company should be issued excepting for cash, and all which should be issued otherwise should be subject to assessment. Shares were issued as 'paid up,' and were bought by a bona fide purchaser. The company and its liquidator were held estopped to prove that the statute had not been followed. In re British, etc., Co. 7 Ch.D. 533; S.C. nom. Burkinshaw v. Nicolls, 3 App.Cas. 1004. In that case (page 1026) a very able judge says that the doctrine of estoppel in pais is a most equitable doctrine, and one without which the law of the country could not be satisfactorily administered:
'When a person makes to...
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Singer v. Salt Lake City Copper Mfg. Co.
...Railroad Co. v. Thompson, 103 Ills. 187. That the verity of the minutes as written in the minute book may be relied on see: Whiting v. Wellington, 10 F. 810; Cook on Stock and Stockholders, sec. 714; v. Aspinwall, 21 How. 539; Beach on Corporations, sec. 295. The idea that the same persons ......
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Atlantic Cotton-mills v. Indian Orchard Mills
...Further, the defendant is estopped to deny the correctness of the transactions as shown on its books. Bank v. Root, 2 Metc. 522; Whiting v. Wellington, 10 F. 810; Com. v. Bank, 137 Mass. W.G. Russell and Geo. Putnam, for defendant. This action is brought to recover the balance of an account......
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C. L. McClain Fuel Corp. v. Lineinger
... ... Pa.Super. 553, 558, 7 A.2d 492, 494 ... [3] Hutchison v. Rock Hill Real Estate & ... Loan Co., 65 S.C. 45, 75, 43 S.E. 295, 306; Whiting ... v. Wellington, 10 F. 810, 812; Commonwealth v ... Reading Savings Bank, 137 Mass. 431, 438, 439, 440; ... Holden v. Whiting, 29 F. 881, 882; ... ...
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Commonwealth v. Reading Sav. Bank
...borne by the corporation, whose officer he is, and that it must be estopped to deny the correctness of the vote as certified. In Whiting v. Wellington, 10 F. 810, question was, in a writ of entry to foreclose a mortgage, whether the demandant, who claimed by an assignment of a mortgage made......