Whelan v. Exchange Trust Co.

Massachusetts Supreme Judicial Court

Whelan v. Exchange Trust Co.

100 N.E. 1095, 214 Mass. 121, 1913 Mass. LEXIS 1079

CourtMassachusetts Supreme Judicial Court

DecidedFebruary 27, 1913

StatusPublished

Cited by13 cases

This text of 100 N.E. 1095 (Whelan v. Exchange Trust Co.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whelan v. Exchange Trust Co., 100 N.E. 1095, 214 Mass. 121, 1913 Mass. LEXIS 1079 (Mass. 1913).

Pincite

Opinion

Braley, J.

The liens of the plaintiffs for labor have been established as of a date subsequent to the recorded mortgage given [123]*123by Albertie W. Soutter, the owner of the premises, to the defendant trust company, and, after maturity, assigned by it to the defendant Brown and by him to the defendant Conant. A decree, establishing the liens as the superior incumbrance, is asked for by the bill.

Upon its face the mortgage purports to be security for the payment of the promissory note of the mortgagor for $6,000. But the paroi evidence leaves no doubt, and the judge rightly assumed, that the actual consideration was for moneys to be advanced from time to time by the mortgagee in payment for a building to be erected upon the land. Hall v. Tay, 131 Mass. 192, 194. The question of priority under R. L. c. 197, § 5, depends primarily upon the inquiry, whether as the process of construction proceeded advancements to the amount named were obligatory or optional with the mortgagee. Gerrity v. Wareham Savings Bank, 202 Mass. 214. Gray v. McClellan, ante, 92. It is uncontroverted that, after deducting interest on the full amount, the remainder was credited on the books to the “A. W. Soutter Building Account,” upon which, as the value of the property was increased by the construction of the building, the mortgagor was permitted to draw and to transfer the amounts so drawn to her own private account kept with the defendant company. The defendant company having been absolutely obligated to pay the loan named in the mortgage, it is immaterial that only a very small portion had been thus transferred before the plaintiffs began work, or that before the entire amount had been disbursed the company received notice of the liens. Gray v. McClellan, ante, 92.

But, if by force of the statute the liens must yield to the mortgage, the plaintiffs ask that only one bill of costs be taxed. The subject of controversy as to each defendant is the same and even if the defendants severed in their answers, the plaintiffs ought not to be trebly mulcted. R. L. c. 203, § 14. Clark v. Reed, 11 Pick. 446. Pratt v. Bacon, 11 Pick. 494. Miller v. Lincoln, 6 Gray, 556.

The decree dismissing the bill when thus modified is affirmed, with costs of the appeal.

Ordered accordingly.

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Braley, J.

The liens of the plaintiffs for labor have been established as of a date subsequent to the recorded mortgage given [123]*123by Albertie W. Soutter, the owner of the premises, to the defendant trust company, and, after maturity, assigned by it to the defendant Brown and by him to the defendant Conant. A decree, establishing the liens as the superior incumbrance, is asked for by the bill.

Upon its face the mortgage purports to be security for the payment of the promissory note of the mortgagor for $6,000. But the paroi evidence leaves no doubt, and the judge rightly assumed, that the actual consideration was for moneys to be advanced from time to time by the mortgagee in payment for a building to be erected upon the land. Hall v. Tay, 131 Mass. 192, 194. The question of priority under R. L. c. 197, § 5, depends primarily upon the inquiry, whether as the process of construction proceeded advancements to the amount named were obligatory or optional with the mortgagee. Gerrity v. Wareham Savings Bank, 202 Mass. 214. Gray v. McClellan, ante, 92. It is uncontroverted that, after deducting interest on the full amount, the remainder was credited on the books to the “A. W. Soutter Building Account,” upon which, as the value of the property was increased by the construction of the building, the mortgagor was permitted to draw and to transfer the amounts so drawn to her own private account kept with the defendant company. The defendant company having been absolutely obligated to pay the loan named in the mortgage, it is immaterial that only a very small portion had been thus transferred before the plaintiffs began work, or that before the entire amount had been disbursed the company received notice of the liens. Gray v. McClellan, ante, 92.

But, if by force of the statute the liens must yield to the mortgage, the plaintiffs ask that only one bill of costs be taxed. The subject of controversy as to each defendant is the same and even if the defendants severed in their answers, the plaintiffs ought not to be trebly mulcted. R. L. c. 203, § 14. Clark v. Reed, 11 Pick. 446. Pratt v. Bacon, 11 Pick. 494. Miller v. Lincoln, 6 Gray, 556.

The decree dismissing the bill when thus modified is affirmed, with costs of the appeal.

Ordered accordingly.

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100 N.E. 1095, 214 Mass. 121, 1913 Mass. LEXIS 1079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whelan-v-exchange-trust-co-mass-1913.

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