Mitchell v. Wright , 234 Mass. 458 ( 1920 )

Jenney, J.

As the only questions now involved relate to the right of Mary C. Ireland to maintain this suit, she is herein called the plaintiff. She was the owner as tenant in common of an undivided third interest in several parcels of land situated in Boston. The only question to be determined is, to what remedy, if any, the plaintiff is entitled as against Marshall G. Wright and his wife, Ellen E.

All of these parties reside in Portland, Maine. Mr. Wright was a member of the bars of Massachusetts and Maine, but had never actively practised his profession. He was in business in Portland as a money lender, making loans at high rates of interest, and the plaintiff went to him as an entire stranger, without any solicitation on his part and without any "knowledge that he was an attorney, solely for the purpose of borrowing money. It is not necessary to recapitulate in detail the various loans made; the transactions were numerous, the rates of interest were high, and large bonuses were charged. The loans were made in Maine, and the master found that they were legal under the laws of that State. As a result there were outstanding five mortgages all given by the plaintiff and all running to Mrs. Wright, but in reality the property of her husband. A sixth mortgage was given to Florence A. Oakley to secure payment of $65, and this mortgage was held by her for the benefit of Mr. Wright. A seventh mortgage, later in date than those referred to, was given by the plaintiff to Wilbur F. Dresser. These mortgages aggregated $2,495. There is no finding as to the value of the plaintiff’s interest in the property. The master finds, and the facts found fully warrant his conclusion, that the plaintiff made “hard and perhaps improvident bargains, but she went into them with her eyes open at a time when she needed, or thought she needed, money, and was willing to pay exorbitant prices for the same. There was no misrepresentation on the part of Mr. Wright.”

The plaintiff admits the execution of these mortgages and contends that she is entitled to relief (1) because these mortgages were held under agreements that all debts secured thereby should remain in abeyance until the settlement of the estate of her father, from whom she inherited her undivided interest in the mortgaged property, and until money was received from her undivided share in the mortgaged property, and also because the mortgages were held under a further agreement that there should be no foreclosure proceedings; (2) because the mortgages have been paid by the receipt of net income from the property in excess of the indebtedness secured thereby; and (3) because she is entitled to redeem from the mortgages, in case they have not been paid, and to an accounting incidental to. such redemption.

While the plaintiff "alleges that Mr. Wright acted as her attorney and that she relied wholly on his advice and counsel, she does not aver that the mortgages were obtained by fraud or by an abuse of the confidential relations of attorney and client existing, as she contends between Mr. Wright and herself, or that said mortgages were not valid liens on her interest in the property, subject however to the agreements above recited.

The plaintiff’s first and second contentions cannot avail. Assuming that evidence was admissible so to vary the terms of the mortgages, the master did not find that any agreements of the character stated had been made, and his findings are absolutely inconsistent with their existence. Moreover, he expressly finds that “no such understanding or agreement obtained in regard to the” mortgage hereinafter described and referred to as the Oakley mortgage. He also found that the mortgages had not been paid by the receipt of income and that no income was received from the property until after the foreclosure of the Oakley mortgage. It is found in much detail that the mortgages were valid mortgages, not obtained by fraud or by an abuse of the relations between attorney and client; that they were not given as the result of solicitation on the part of the Wrights, or procured with any sinister motive or intent ultimately to deprive the plaintiff of her property by foreclosure or otherwise. The master finds that Mr. Wright did not act as the plaintiff’s attorney until October 6, 1911. Previous to that date the plaintiff had given three mortgages to Mrs. Wright. It is true that the first mortgage was originally given to one Allen and had not then been assigned to Mrs. Wright, but the assignment was taken at the solicitation of the plaintiff. The relation between the plaintiff and Mr. Wright was primarily that of money lender and borrower in needy circumstances. He was not engaged in the general practice of law and the services rendered by him all related to the protection of the property included in the mortgages and were, so far as the record shows, proper for that purpose. Assuming that the questions involved in this relationship are open, the findings negative the concealment of any material fact influencing the plaintiff’s action. While transactions between attorney and client must be scrutinized with the greatest care, and while it must appear that they are "fairly and honestly consummated,” this record presents no abuse of the relation. While we cannot approve business dealings between attorney and client which do or may create adverse interests between them, on the facts found, the plaintiff is not entitled to relief because of this relation. Manheim v. Woods, 213 Mass. 537. Rolikatis v. Lovett, 213 Mass. 545. Fardy v. Buckley, 231 Mass. 377.

As the mortgages constituted valid liens on the plaintiff’s property, the relief to which she at the most is entitled is an accounting. But the accounting sought is simply that which is incidental to redemption from the mortgages. The bill contains no allegations appropriate for relief under R. L. c. 159, § 3, cl. 6. See Lee v. Fisk, 222 Mass. 424; Lovejoy v. Bailey, 214 Mass. 134, 150. The plaintiff, however,-can maintain this bill for an accounting incidental to such redemption unless she has lost her interest in the property. The Wrights contend that she has lost such interest by reason of the foreclosures of the Dresser and Oakley mortgages. The Oakley mortgage was duly foreclosed on September 10, 1913, and Mrs. Wright was the purchaser at the sale under the power contained in the mortgage, taking title in her own name but for the benefit of her husband, and the deed under the power was duly made and delivered to her. The right to foreclose this mort- . gage was not impaired by reason of the smallness of the principal sum then overdue and unpaid. The legal exercise of this power cut off all right of redemption from prior mortgages. This foreclosure was not opened by the entry to foreclose made by Mrs. Wright in April of the next year on one of the earlier mortgages. Such entry did not impair the validity of the sale already made under the power contained in a subsequent mortgage, although the parties to both mortgages were the same. Its only possible effect was by way of further assurance of title, or as the assertion of a right paramount to intervening incumbrances, if any.

Inasmuch as the plaintiff has lost her right of redemption by the foreclosure of the Oakley mortgage, it is unnecessary to consider the questions involved in the foreclosure of the Dresser mortgage, and the defence of loches as raised by the Wrights is also immaterial.

The plaintiff’s exceptions to the master’s report have all been examined with care and such of them as are essential to the decision of the case have already been considered. The other exceptions relate to questions now immaterial, and to findings of fact which cannot be reversed because made on evidence not reported.

The decrees from which the plaintiff Ireland has appealed must be affirmed.

So ordered. .