Williams v. Fowle
| Decision Date | 03 March 1882 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Bridget Williams & another v. Edwin M. Fowle & another |
[Syllabus Material]
Suffolk. Contract by Bridget Williams and Andrew Williams her husband, upon the promise contained in a deed of real estate to the defendants, made by Andrew Williams and Bridget Williams, in her right, dated November 13, 1874, wherein they covenant that the "granted premises are free from all incumbrances excepting a mortgage thereof for three thousand dollars, which, with the interest therein, the grantees assume and agree to pay, the same forming a part of the consideration hereof." Writ dated June 21, 1880. Trial in the Superior Court, without a jury, before Pitman, J., who allowed a bill of exceptions, in substance as follows:
The original plaintiffs were Bridget Williams and George H. Remele, claiming to own the interest of Andrew Williams in said contract by purchase of the same from the assignee in insolvency of Andrew. The defendants objected that Bridget Williams and Remele could not maintain the action in their joint names; and thereupon the plaintiffs amended their writ and declaration by striking out the name of Remele and inserting the name of Andrew Williams in the place thereof. The defendants objected that the action could not be maintained by Bridget and Andrew as joint plaintiffs; but the judge overruled the objection, and ruled that the action could be maintained by them.
It appeared that the defendants accepted said deed, entered under it upon the land thereby conveyed, and enjoyed the same; that the mortgage mentioned in the deed was made by Andrew and Bridget Williams to George H. Ireland, to secure three notes signed by them, two of $ 500 each and one of $ 2000, and interest, dated February 11, 1874; that the defendants paid the two notes for $ 500, and sold and conveyed the land in November 1876; that George H. Ireland assigned the mortgage and indorsed the $ 2000 note to Catherine P. Ireland, who for breach of the condition of the mortgage, in November 1878, pursuant to the power in the mortgage, caused the mortgaged premises to be sold for the sum of $ 1100 to George H. Remele, but for her own use and benefit, and indorsed the note of $ 2000 to Remele, who, on September 19, 1879, brought suit thereon against the makers, and therein summoned the defendants as trustees; that in February 1879, the estate of Andrew Williams was assigned under the insolvent laws of the Commonwealth to James S. Mulvey, and Andrew, on September 5, 1879, obtained a certificate of discharge from all his debts, of which the $ 2000 note was one; that Mulvey, by deed dated February 5, 1880, reciting a nominal consideration, assigned and sold to Remele all his right, title and interest in and to the contract declared on; that Andrew and Bridget Williams were by consent defaulted in said action, March 3, 1880; that such default was made on the verbal agreement that when the plaintiff in that action, or Catherine P. Ireland, for whose use the action was brought, should collect of the defendants in this action the amount due from them to Bridget and Andrew, or Andrew's assignee, the plaintiff or Catherine P. Ireland should out of the proceeds allow or pay Andrew and Bridget, or their attorney, the sum of $ 150, without their being liable for the expense of the action; that the agreement to pay $ 150 was subsequently modified by the payment of $ 50, the balance to be paid when collected of the defendants in this action; that Remele had not at any time released or discharged Andrew or Bridget from payment of said note or judgment thereon, or covenanted or agreed with them not to sue them thereon, or not to enforce the same against them, or made any other agreement with them in respect to said note; and that this action was brought for the benefit of Bridget Williams, under said agreement, and for Catherine P. Ireland, and at the expense of the latter.
The defendants contended that, on this evidence, the action could not be maintained, or, if maintainable, that only nominal damages could be recovered; and that the action could not be maintained, because the evidence showed that the action was prosecuted in pursuance of a champertous...
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