Stevens v. Hayden

Colt, J. This case comes up on demurrer. The substantial allegations of the bill are that the plaintiff, in 1874, mortgaged her real estate to Palmer, and, as additional security, obtained a policy of insurance against fire, payable to the mortgagee in case of loss. In 1876, she gave a second mortgage to Eames, and, in [331] June 1877, conveyed the estate in fee to Jones, who assumed and agreed to pay the two mortgages. Jones afterwards conveyed the same to William D. Hayden, who, as part of the consideration, also assumed and agreed to pay both mortgages. Palmer, on receiving the amount of his note and mortgage, assigned the same, when overdue, to a bank in Cambridge, to hold as collateral security for the joint note of William D. and Joseph O. Hayden to the bank, upon the payment of which the mortgage was assigned by the bank to Joseph O. Hayden. The building insured was destroyed by fire in 1877, and, in March 1878, the Haydens received the sum of fifteen hundred dollars in settlement of the loss. The bill then alleges that Joseph O. Hayden assigned the note and mortgage to Burrows, in July 1878, after the plaintiff was entitled to have the insurance money indorsed on the note; and that the estate is not sufficient for the payment of the mortgages, unless the money so received is applied in payment. The prayer is, that the defendants may be ordered to indorse the insurance money upon the note secured by the first mortgage, and may be required to cancel the mortgage to that extent; and for general relief. These allegations fail tó bring the case within any known head of equity jurisdiction. The bill is not brought to redeem a mortgage, because the plaintiff shows that she has parted with all title to the land, and the right to redeem both mortgages is apparently in William D. Hayden. It is not a bill to enforce a trust, because- it is nowhere alleged that the plaintiff has any equitable title or interest in the land, or that the same is charged with a trust in her favor. It is not a bill for the cancellation of a written instrument obtained by fraud, the invalidity of which is not apparent on the instrument itself, because the allegations wholly fail to disclose such ground of complaint. Fuller v. Percival, 126 Mass. 381. Ho fraud, collusion or conspiracy against the plaintiff’s rights is set forth. And, upon all the allegations in the bill, it does not appear that the plaintiff has suffered, or is likely to suffer, any loss by the failure or refusal of Hayden to apply the insurance money in payment of the first note and mortgage. It is not charged that she has been obliged to pay anything on account of the mortgages given by her; or that her [332] grantee, Jones, is insolvent, and unable or unwilling to perform Ms agreement to assume and pay the same ; or that the Haydens are not fully able to respond for any misapplication of money received by them; and it fully appears that the note and first mortgage were assigned by Hayden to the present holder long after they were due, and are now held subject to all equities existing at the time of their transfer. It is difficult to see what claim for equitable relief the pleader intended to set forth in “ a clear and explicit statement,” as required by the rules of this court, or whom she intended to make defendants. As was said in Wright v. Dame, 22 Pick. 55, 59, “Every material fact necessary to entitle the plaintiff to the relief prayed for must be contained in the stating part of the bill.” “ This part of the bill must contain the plaintiff’s case, and his title to relief; and every necessary fact must be distinctly and expressly averred, and not in a loose and indeterminate manner, to be explained by inference, or by reference to other parts of the bill.” Demurrer sustained, and hill dismissed, with costs.