DocketNumber: Nos. 93-P-130 & 93-P-131
Citation Numbers: 37 Mass. App. Ct. 128
Judges: Jacobs
Filed Date: 7/29/1994
Status: Precedential
Modified Date: 6/25/2022
We address a single issue presented by these cases:
The four releases were of specifically described parcels, not the land in question, and were made to Dean for consideration. The releases more particularly stated that they “shall
The judge determined that notwithstanding the apparent foreclosure of the right of redemption, it was logical to interpret the matter “in accordance with the presumed intent of the [Bank and Dean].” She concluded that “the various actions taken by the Bank are inconsistent with its claim of ownership . . . and rule[d] that the parties who rely on deeds from the Bank take nothing from these conveyances.” In reaching this conclusion, the judge appears to have inferred that the partial releases and the discharge given by the Bank reflected its “true position [as] merely the holder of a security interest. . . .” She stated that her conclusion was buttressed by the failure of the Bank’s records to show ownership of vacant land, and the lapse of time during which the Bank made no conveyances. She also found of some importance that White and Butler do not appear to be bona fide purchasers for value. The Bank’s deeds to them state consideration of one dollar and the grants are made without covenants.
Moreover, Pub. Sts. (1882) c. 120, § 24, in force at the time of the marginal notation of discharge of the mortgage, provided that “such [marginal] entry [signed by the mortgagee] shall have the same effect as a deed of release duly acknowledged and recorded.”
Accordingly, we agree with the judge’s conclusion that neither White nor Butler received anything from the deeds given them by the Bank.
Judgments affirmed.
A judge of the Land Court was designated to sit simultaneously in that court and the Superior Court to hear the cases, one of which had been entered in the Land Court in 1985, and the other in the Superior Court in 1987. The separate appeals before us were taken by Butler in the Land Court action and White and the Bank in the Superior Court action. In the
The statutes governing the foreclosure by entry procedure have an early origin in the history of the Commonwealth, see Lawrence v. Fletcher, 8 Met. 153, 164 (1844), S.C., 10 Met. 344 (1845), and have been reenacted and revised from time to time.
Dean gave deeds for these same parcels to others, each for the same consideration as stated in the releases to him. Two of these conveyances are dated the same date as the Bank’s releases, and two are dated prior to the releases. The circumstances might be interpreted to suggest that the Bank and Dean coordinated the disposition of these parcels in order to obtain payments against the mortgage.
General Laws c. 244, § 35, the present-day version of Rev. Sts. (1836) c. 107, § 33, permits, after foreclosure of mortgages not containing a power of sale, recovery of a deficiency judgment, but such recovery “shall open the foreclosure, and the person entitled may redeem the land ... if suit for redemption is brought within one year after the recovery of such judgment.” See Lawrence v. Fletcher, 8 Met. 153, 165 (1844), S.C., 10 Met. 344 (1845); Boston v. Gordon, 342 Mass. 586, 593 (1961). We also note that G. L. c. 244, § 21, provides for tender to prevent foreclosure under certain circumstances, provided the mortgagor commences suit for redemption. In the present case we are concerned, however, not with the operation of statutory provisions, but whether an agreement of the parties can be inferred in order to decide whether a redemption was effected.
The present-day statute, G. L. c. 183, § 54, was amended by St. 1951, c. 698, eliminating reference to marginal notations of discharge. As further amended by St. 1984, c. 401, the section now states, in pertinent part: “The recordation of a duly executed and acknowledged deed of release or written acknowledgment of payment or satisfaction as provided herein shall be conclusive evidence that the mortgage has been discharged . . . .”
We intimate no opinion as to the effect, in the circumstances, had there been a good faith, diligent exercise of the power of sale pursuant to the statutory predecessors of G. L. c. 244, §§ 14-15, prior to the acts relied on by the judge as evidencing inconsistency with ownership. See G. L. c. 244, § 18. It has long been “common practice for mortgagees to use both [the foreclosure by entry and foreclosure by power of sale] methods concurrently,” Harlow Realty Co. v. Cotter, 284 Mass. 68, 69-70 (1933), since “proper execution of the former obviates any defects in the latter.” Hull v. Attleboro Sav. Bank, 33 Mass. App. Ct. 18, 19 & n.3 (1992). See also Grabiel v. Michelson, 297 Mass. 227, 228-229 (1937); Park, Real Estate Law § 532 (2d ed. 1981).