Gerrity v. Wareham Savings Bank

88 N.E. 1084, 202 Mass. 214, 1909 Mass. LEXIS 830

• Court: Massachusetts Supreme Judicial Court
• Decided: May 21, 1909
• Status: Published

Opinion

Braley, J.

The plaintiff as the purchaser at the sale on execution, having acquired the interest of the judgment debtor at the date of the attachment in the realty described in the bill, the subsequent mortgages given to the defendant were subject to his title. R. L. c. 178, § 26. Wiggin v. Heywood, 118 Mass. 514, 516. But the bank, having obtained by assignment from Rudnick the prior outstanding mortgage given to secure advances for the purchase price of the land and the construction of the buildings, which it is proceeding to foreclose, the plaintiff asks for a decree, that either the bank has no valid title, or that the mortgage has been discharged and extinguished, or that, if still enforceable, he can redeem without being charged with the sum advanced by the mortgagee after the attachment had been recorded.

It is manifest from the agreed statement of the evidence, that, before recording the mortgages given to secure the loan obtained from the defendant, the treasurer upon being notified of the attachment procured the assignment of the first mortgage for the protection of the bank. If the concurrent agreement with the assignor and the assignment are construed as one instrument, the recitals show there was no intention to depart from the purpose for which it had been obtained. The bank indeed stipulated that the assignor’s second mortgage should be protected, but the defendant concedes that the stipulation cannot impair the priority of the attachment. The negotiation of the loan and the execution of the papers appear to have been intrusted to the treasurer, and his subsequent acts upon ascertaining the condition of the title being for the benefit of the bank, were, under the circumstances, within his implied powers as an executive officer of the corporation. Bristol County Savings Bank v. Keavy, 128 Mass. 298. Yet, if his original authority may not have been so broad, the foreclosure by entry and sale afterwards instituted by vote of the board of investment was a sufficient ratification. North Brookfield Savings Bank v. Flanders, 161 Mass. 335. New England Ins. Co. v. Wing, 191 Mass. 192.

Nor can the defendant’s title be successfully attacked because being a savings bank subject to the limitations as to investments found in R. L. c. 113, § 26, cl. 1,

* as the plaintiff contends, it was prohibited from taking the assignment, or under its chartered powers from binding itself by the accompanying agreement. The plaintiff does not charge fraud, and the transaction, having been entered into and performed in good faith solely in the interest of the bank, was a valid one, and, even if upon discovery of the state of the title the defendant could have refused to complete the negotiations, it cannot be assailed on this ground. Chaffee v. Middlesex Railroad, 146 Mass. 224. New York Bank Note Co. v. Kidder Press Manuf. Co. 192 Mass. 391, 404, and cases cited. National Bank v. Matthews, 98 U. S. 621. National Bank v. Whitney, 103 U. S. 99. Force v. Age-Herald Co. 136 Ala. 271.

If, instead of lending the money on the mortgages which was to be paid by the mortgagor to Rudnick in discharge of the first mortgage, the defendant had advanced the proceeds directly to him, and then had taken an assignment, the transaction would not have operated as a payment, but as a purchase. Bremer v. Columbian National Ins. Co. 199 Mass. 344. It having been the intention of the parties that the mortgage should be kept alive, the indebtedness was not extinguished or discharged, and the defendant succeeded to the security. Everett v. Gately, 183 Mass. 503, 505. Chetwynd v. Allen, [1899] 1 Ch. 353. It is not contended that either the amount paid by the bank, or the sum ad* vanced by Rudnick after notice of the attachment was in excess of the disbursements actually used for the purchase of the land and the construction of the building.

By the sale on execution the plaintiff came into the ownership of the property, of which the money put into the buildings formed a part. In the effort to retain the benefit of the last instalment by having it excepted from the mortgage, the plaintiff relies on the case of Barnard v. Moore, 8 Allen, 273, where after mortgaged personal property had been attached and the mortgagee had been summoned as a trustee, he sought to avail himself of the mortgage to secure other sums falling due from the mortgagor subsequent to the attachment and service. It was said in the opinion, that, the claim of the attaching creditor having become fixed, a new and distinct indebtedness could not be added which arose afterwards.

In the present ease the full amount of the ultimate indebtedness was definitely fixed by the mortgage deed, which had been recorded, and, if only a part had been advanced at the time of the attachment, the plaintiff had constructive notice of the contract, the performance of which had not been interrupted. The continuance of the work of construction was not in any sense an attempt to tack on a new debt since contracted, but was the carrying out of the contract according to its terms. The mortgage still remained a valid incumbrance, to which for the full amount the plaintiff’s title is subordinate. Bassett v. Daniels, 136 Mass. 547. Tillinghast v. North End Savings Bank, 178 Mass. 458. Robinson v. Williams, 22 N. Y. 380. Witczinski v. Everman, 51 Miss. 841, 845. Nelson v. Iowa Eastern Railroad, 8 Am. Ry. Rep. 82. Galveston, Houston, Henderson Railroad v. Cowdery, 11 Wall. 459. It appears that when the mortgage was assigned the taxes which the mortgagor covenanted to pay were in arrears, and, they having remained unpaid, the plaintiff contends that the defendant cannot foreclose for this breach. But the unrestricted right of foreclosure continued, and could be exercised as well after as before the assignment. The power to sell for a covenant broken was not controllable at the will of the mortgagor, or by his successor in title, but, being irrevocable, could be suspended or waived only by the consent of the mortgagee, or by the defendant to whom his rights had passed.

The'result is, that the plaintiff is entitled to redeem on payment of the amount of the mortgage, and costs of foreclosure.

Decree accordingly.

The provision of this section referred to in the plaintiff’s brief was that “ A loan on mortgage shall not be made except upon the report of not less than two members of the board of investment, who shall certify ” as there required. The requirements of § 29 as to applications for loans also were referred to.