Porter v. Stuart , 1909 Mass. LEXIS 906 ( 1909 )

Sheldon, J.

The defendant Sweatt has not appealed from the decree entered in the Superior Court, and the defendant Stuart has made no argument and filed no brief in this court, and makes no contention that there is any error in the decree so far as it gives relief against him. And on the master’s report it is manifest that the plaintiff was entitled to relief against both Stuart and Sweatt for the fraud which they combined together to practice upon him.

The only question to be considered is whether the mortgage given by Sweatt to Siefert is good against the plaintiff. Sweatt described himself in the mortgage as of Boston, and the mortgage was recorded in that city. But Sweatt’s residence was in Waltham. The mortgage never was recorded on the records of that town; and there is no contention that the property was delivered to and retained by the mortgagee. Accordingly, it was not valid against any one but Sweatt and Siefert themselves, the only parties to the mortgage. This is the express provision of R. L. c. 198, § 1. And as the plaintiff never had made any contract with Siefert or received anything from him, the plaintiff is not bound to restore anything to Siefert or in any way to put Siefert into the same position that he occupied before taking his mortgage from Sweatt. It does not appear whether the plaintiff has or has not returned to Sweatt the note given by the latter to the plaintiff; but this is a matter which concerns only Sweatt, who has not cared to raise the question, perhaps in view of the master’s finding of his financial irresponsibility.

There was no plausible ground for this appeal, and the defendants Stuart and Siefert must be charged with double costs upon the appeal The decree appealed from will be modified accordingly, and so modified will be

Affirmed.