Willcox v. Foster

• Decision Date: 31 March 1882
• Citation: Willcox v. Foster, 132 Mass. 320 (Mass. 1882)
• Court: Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Henry T. Willcox & another v. Ellen A. Foster & others

132 Mass. 320

Henry T. Willcox & another v. Ellen A. Foster & others

Supreme Court of Massachusetts

March 31, 1882

Argued October 27, 1881

Bristol.Bill in equity, filed June 2, 1877, by Henry T. Willcox and Charles Hawes, against Ellen A. Foster, Jenks Follett, the Providence County Savings Bank, Herbert E. Foster and Marsden J. Perry, for the restoration of a mortgage given by Ellen A Foster to the plaintiff Willcox, and by him assigned to the plaintiff Hawes, and alleged to have been discharged on the record by Willcox by mistake.The case was referred to a master, who reported the following facts:

On October 6, 1873, Ellen A. Foster made and delivered to the plaintiff Willcox, for a valuable consideration, a mortgage for $ 3800 of a parcel of land in Freetown, which was recorded on December 8, 1873.

On November 6, 1874, Ellen A. made and delivered, for a valuable consideration, a second mortgage of the same premises to Willcox, which was recorded on November 14, 1874.When this mortgage was delivered, the first mortgage had been paid, but was not discharged or cancelled on the record.On June 19 1875, the second mortgage was assigned for a valuable consideration to the plaintiff Hawes.This assignment had not been recorded on the first day of the hearing, August 31 1880.

On November 14, 1874, Ellen A. made and delivered, for a valuable consideration, a third mortgage for $ 1500 of the same premises to the defendant Follett, which was recorded on November 24, 1874.This mortgage was, in terms, subject to the second mortgage for $ 2800.

On April 17, 1876, the plaintiff Willcox cancelled and discharged on the margin of the record both the first and the second of the above-described mortgages.Some months after the assignment of the second mortgage to the plaintiff Hawes, Herbert E. Foster requested Willcox, both in conversation and by letters, to discharge the first mortgage on the record.The master found that Willcox, at the request of Ellen A. Foster, and in the discharge of his duty as a mortgagee who had been paid in full, went to the registry of deeds for the purpose of discharging the first mortgage of $ 3800 and no other; that he did not know whether the assignment of the second mortgage had been recorded, and made no inquiry about it; that he did not intend to do a wrongful act or to injure any one; that he discharged the first mortgage on one book, and the second mortgage on another book, and in so doing did not use ordinary care.

On September 16, 1876, the Providence County Savings Bank sued out a writ against Ellen A. Foster, and, on the 30th of the same month, made an attachment of all her real estate situated in the county of Bristol.There was no evidence that Ellen A. had any real estate in this county, except what was subject to the mortgages before named.At this time the claim of the bank was about $ 2000, the precise amount not appearing.Said action has since been dismissed for want of prosecution.

On January 26, 1877, Ellen A. made and delivered, for a valuable consideration, to the defendantHerbert E. Foster, her brother and agent, a fourth mortgage for $ 300 of the same premises, as security for a promissory note payable in thirty days from said January 26.This mortgage was recorded.The mortgagee knew that the first mortgage had been paid, and that no part of the principal of the second mortgage had been paid, when he took his mortgage.He also knew that the first and second mortgages were discharged and cancelled on the record, and he had been informed by counsel that the second mortgage could not be reinstated.

On October 1, 1877, Herbert E. Foster assigned this fourth mortgage to the defendant Perry.This assignment was in fact as collateral security in part for a preexisting debt, and in part for money lent at the time of the assignment.Before taking the assignment, Perry was informed by Herbert E. of the true record state of the title.But Herbert E. did not inform Perry that he, Foster, knew that no part of the principal of the $ 2800 mortgage had been paid when he took the fourth mortgage.Perry relied on the statements of Herbert E., and made no personal examination of the records.

Hearing before W. Allen J., who reserved the case for the consideration of the full court; such decree to be entered as justice and equity might require.

Decree for the plaintiff Hawes.

E. H. Bennett, (H. J. Fuller with him,) for Willcox.

S. R. Townsend, for Hawes.

J. Brown, for Follett and H. E. Foster.

L. E. White, for Perry.

Endicott, J. Morton, C. J., W. Allen & C. Allen JJ., absent.

OPINION

Endicott J.

The plaintiff Hawes is entitled to have the discharge of his mortgage cancelled, and the mortgage restored to the record as an existing incumbrance on...