Hannaford v. Charles River Trust Co. , 248 Mass. 225 ( 1924 )

Pierce, J.

After the decision and rescript, “ Exceptions sustained,” in this case, reported as Hannaford v. Charles River Trust Co. 241 Mass. 196, the case was tried again in the Superior Court and by direction of the judge a verdict for the plaintiff in the sum of $1 was returned by the jury. To the order directing a verdict and to the refusal to give certain requests for rulings the plaintiff excepted. The bill of exceptions contains all the evidence material to the questions presented thereby.

The issues raised at the former trial were whether “ the record and judgment in the suit of Hayden v. Hannaford et al. was admissible in evidence to show that the mortgage in question was fraudulent and void, and that, therefore, there was no liability, or no damage, or only nominal damage in the case at bar; and whether, in view of this evidence, the court should have directed a verdict for the defendant.” The plain and unmistakable import of the former decision, which is the law of the case, is that the mortgage held by the plaintiff was fraudulent and voidable as to existing creditors, was worthless as an instrument as against creditors, and that the discharge of the mortgage on the facts then before the court in no way injured the plaintiff. It is equally plain on the facts as they then appeared that the plaintiff . was entitled to recover no more than nominal damage. It was assumed at the former trial, and found as a fact by the jury at the second trial, that the mortgage was not discharged by the defendant at the request of the plaintiff.

At the new trial, in addition to the facts reported in the opinion above referred to (which need not be quoted) it appeared that the Hayden case was a suit in relation to a chattel mortgage; that it combined a claim in the nature of equitable replevin to recover the mortgaged chattels with a bill to have the plaintiff’s mortgage and also one to her sister declared fraudulent and void; and prayed “ that said notes and mortgages be delivered up by them for cancellation.” It further appeared that the equitable replevin aspect of the case was abandoned; that there was no decree for the delivery or cancellation of either mortgage; that the plaintiff took out a special precept of attachment and took a money decree for $4,700 with interest and costs against the estate; that Hayden, after the decree, at a conference agreed in substance that he would not “ execute,” would not take judgment against the estate, but would buy the .property at a foreclosure sale and in that way get enough to pay his claim of $4,700 and the plaintiff’s mortgage. It is to be observed that the court found in the Hayden case, swpra, that the mortgage in question was without consideration, was given for the purpose of hindering, delaying and defrauding the mortgagors’ creditors; that Louisa'M. Hannaford, the plaintiff, knew and joined in said fraudulent purpose; and that the mortgages were not given “particularly to defraud the plaintiff [Hayden].”

The plaintiff’s requests numbered 1, 2, 3 and 4 were denied rightly, each of them resting upon the assumed fact, which the Hayden case negatived, that there was a consideration for the mortgage and mortgage note. It is true that a mortgage and mortgage note, given in fraud of creditors, may be good as against the mortgagor, and so not absolutely void; but in legal parlance such a mortgage is void as against creditors who assert their rights to avoid it. Sherman v. Davis, 137 Mass. 132. It is also true that such a mortgage and mortgage note are voidable by future creditors, when voidable as against creditors existing when the conveyance was made. Livermore v. Boutelle, 11 Gray, 217. Wadsworth v. Williams, 100 Mass. 126. Day v. Cooley, 118 Mass. 524, 527. Dodd v. Adams, 125 Mass. 398. Woodbury v. Sparrell Print, 187 Mass. 426. The request numbered 5 was properly denied.

The plaintiff’s request numbered 6 was inapplicable to discharge of mortgages of real estate, and the statute, G. L. c. 140, §§ 91, 94, cited is applicable only to mortgages and pledges of personal property. The requests numbered 7 and 8 are not applicable where, as here, the note which the mortgage was given to secure was without consideration: they were rightly denied. The request numbered 9 was rightly denied: the facts present no question of preference upon which the jury could be called upon to pass. The refusal to give request numbered 10 was cured by the direction to find a verdict for the plaintiff; it raises no question of the amount of damages a plaintiff is entitled to recover in such circumstances. The request numbered 11 was refused rightly: the evidence raises no question of the validity of this mortgage because the conveyance of it was upon a consideration of blood or affection. There was no error in the refusal to give the requests numbered 12, 13, 15 and 16.

Upon all the evidence contained in the bill of exceptions, we think the case presented at the second trial in every substantial particular was the case heard at the first trial; and that the opinion and rescript in the case as reported in 241 Mass. 196 required, in such event, the ruling that the plaintiff was entitled to receive nominal damages only for the failure of the defendant to reassign the mortgage.

Exceptions overruled.