[Download] "Worcester North Savings Institution V." by Supreme Judicial Court of Massachusetts * Book PDF Kindle ePub Free
eBook details
- Title: Worcester North Savings Institution V.
- Author : Supreme Judicial Court of Massachusetts
- Release Date : January 09, 1935
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 72 KB
Description
CROSBY, Justice. In this bill in equity, as amended, the plaintiff seeks to have a mortgage, held by it on certain real estate, given priority over a mortgage held by the defendant Joseph Scarano on the same property which is now a first mortgage as a matter of record, but which, the plaintiff alleges, it was the intention of the parties should be subject to the mortgage held by the plaintiff. The case is before this court upon an appeal with a report of material facts made by a Judge of the superior court, in substance, as follows: On June 20, 1924, the defendant Rolland Farwell bought out the interest of his brother, the defendant Leon C. Farwell, in certain read estate on Highland avenue in Fitchburg in this commonwealth theretofore owned by them in common, and mortgaged the whole estate to the Fitchburg Cooperative Bank to secure his note of that date for $3,600, and on the same day gave to Leon a second mortgage for $700 to secure the unpaid balance of the purchase price. The proceeds of the cooperative bank loan were used in part to pay a first mortgage for $2,000 on the property held by the Worcester North Savings Institution. The property, owned by Rolland Farwell alone, remained subject to the Fitchburg Cooperative Bank mortgage and to the second mortgage to Leon Farwell until November 8, 1926. On that day Rolland Farwell gave to the defendant Scarano a note for $900 payable on demand, to cover a debt already owed, and a mortgage on the Highland avenue property of even date to secure that note. That note and mortgage were drawn by one Wilson, an attorney who had previously done some legal business for Scarano, but he was paid for his services in the matter by Farwell. Rolland Farwell had told Scarano that the property was subject to a first mortgage to the Fitchburg Cooperative Bank, but he did not tell him that his brother Leon held a second mortgage on the property. As drawn by Wilson and executed by Rolland Farwell, the mortgage to Scarano recited that the property was subject to a mortgage to the Worcester North Savings Institution for $2,000. Scarano accepted the mortgage upon the assumption, which it was reasonable for him to make, that Rolland Farwell's previous statement that the property was subject to a mortgage to the Fitchburg Cooperative Bank was a mistake, or that the bank mortgage situation had changed and that the property as mortgaged to him, Scarano, was subject only to a mortgage for $2,000 to the Worcester North Savings Institution. Neither Rolland Farwell nor Wilson told Scarano at the time the mortgage to Scarano was executed and delivered that reference therein to the holder and the amount of the first mortgage was not true. It did not appear that Wilson examined the title for Scarano, and Rolland Farwell having said nothing about the second mortgage to his brother or the incorrect reference in the Scarano mortgage as to the holder and amount of the bank mortgage, Scarano relied upon the assumed correctness of the reference in his mortgage to the bank mortgage. At the Conclusion of this transaction the property was, in fact, subject to the following mortgages in the order named: 1. First mortgage to the Fitchburg Cooperative Bank for $3,600. 2. A second mortgage to the defendant Leon Farwell for $700. 3. A third mortgage to the defendant Scarano for $900. The property remained subject to these mortgages until early in November, 1927.