Pierce v. Le Monier

Morton, J. The master has found that the defendant Warner holds the naked legal title to the mortgage, but that he has no further interest in the same, and that there is nothing due him thereon; and that the defendant Maria Le Monier has no equitable title to said mortgage, and that there is nothing due her thereon. The master has also found that George C. Le Monier has an equitable claim under said mortgage as security for the amount due him from the plaintiff and her husband, which he has found to be $50 and interest, amounting in all to $62.37. The decree directs the plaintiff to pay the said George C. Le Monier said sum with interest at five per cent from August 23, 1897, to the day of payment, and further directs that within ten days after said payment the said Warner shall discharge the mortgage. Neither George C. Le Monier nor the plaintiff’s husband is a party, and we think that, before the case properly can be finally disposed of, both should be made parties. Probably it will not be necessary to send the case back to the master. See Browning v. Carson, 163 Mass. 255. But, in order [512] that the rights of all persons in interest may be concluded, we think that they should be made parties. See Nelson v. Ferdinand, 111 Mass. 300; Coles v. Forest, 10 Beav. 552. The defendant Warner has waived his appeal, and the exceptions taken by him to the master’s report are not before us. The only exception to the master’s report which is before us is that of Maria Le Monier. The exception is to the finding of the master that the payment of the Cochran note, and the payment by the plaintiff’s husband of all his other indebtedness existing at the time, purged the transaction of the fraud • intended and committed by the conveyance to the plaintiff and by the mortgage executed by her, and that upon payment to George C. Le Monier of the amount due' him she is entitled to redeem. We think that the exception must be overruled, though not upon the ground taken by the plaintiff. The case has been argued by the plaintiff, as it apparently was treated by the master, as if, in order to entitle the plaintiff to redeem, she must show that the transaction had been purged of the fraud which led to the conveyance and the mortgage. Possibly the case could stand on that ground. See Carll v. Emery, 148 Mass. 32; Harvey v. Varney, 98 Mass. 118; Crowninshield v. Kittridge, 7 Met. 520; Oriental Bank v. Haskins, 3 Met. 332; Thomas v. Goodwin, 12 Mass. 140; Hutchins v. Sprague, 4 N. H. 469. But it seems to us that there is another and a better view on which the action of the Superior Court in overruling the exception can be sustained. As between the parties to the deed and the mortgage, those conveyances were valid. Stillings v. Turner, 153 Mass. 534. Harvey v. Varney and Crowninshield v. Kittridge, ubi supra. Dyer v. Homer, 22 Pick. 253. They were fraudulent only as to creditors, and voidable only by them. The plaintiff is not seeking to set aside the mortgage on the ground of the alleged fraud, or for any other reason, and she is not obliged in order to obtain the relief which she desires to rely upon the alleged fraud. On the contrary, by seeking to redeem she affirms or acknowledges the validity of the mortgage. Cases therefore on which the defendant relies, in which it was sought to obtain a reconveyance of property which had been fraudulently conveyed, do not apply, and it is not necessary to consider [513] whether the original transaction which led to the deed and mortgage has been purged of fraud. The accountings which took place, as the master has found, between the parties, must be regarded as settling the amounts due under the mortgage when they were had, and the objection that they related to sums advanced subsequent to the giving of the mortgage, cannot prevail in view of the fact that the master has found in substance that it was understood and agreed between the parties that the mortgage should stand as security for the sums so advanced. Stone v. Lane, 10 Allen, 74. Case remitted to the Superior Court for further proceedings in accordance with this opinion.