Page v. Franklin

Braley, J. The actual consideration of the mortgage, even if it purported to be security for the payment of the plaintiff’s promissory note, could be shown by paroi evidence. Gray v. McClellan, ante, 92. [556] It appears from the averments of the first, second and fifth paragraphs of the bill as amended, which are admitted by the answer, that the defendant held the mortgage as trustee under an agreement in writing requiring him to pay a prior mortgage on a portion of the property to one Travers, with the accrued interest fixed at a certain sum, and also a mortgage on another portion of the land to one Johnston, with a further amount for taxes due under a tax sale of other property which is not particularly described. If at the date of filing the bill the mortgage to ' Travers had not been foreclosed, the amendment setting forth the subsequent foreclosure to which the defendant has answered generally, may be treated as in the nature of a supplemental bill whereby all matters in controversy under the agreement can be determined in one suit. McMurtrie v. Guiler, 183 Mass. 451, 454, 455. The defendant having become bound to preserve and protect the plaintiff’s title, a breach which goes to the essence of the contract, or misconduct in discharge of the trust, entitles her to full relief, which may include the assessment of damages. Ginn v. Almy, 212 Mass. 486, and cases cited. Ashley v. Winkley, 209 Mass. 509. While the evidence has been reported the usual rule obtains. Manheim v. Woods, 213 Mass. 537. And the judge’s findings of fact not being plainly wrong, it is manifest, that, although he paid the taxes and discharged the tax title, the defendant instead of paying the mortgage to Johnston procured an assignment to himself. It is also found, that acting in bad faith as fully pointed out in the sixth paragraph of the memorandum, he permitted the mortgage to Travers to be foreclosed, causing the plaintiff, who was given no opportunity to safeguard her rights, to lose a valuable interest in the equity of redemption. If the question of damages had not been in issue, the defendant, upon payment of the amount of the mortgage to Johnston, the taxes, and the incidental expenses connected with the examination of the title, should be ordered to discharge this mortgage, and also the mortgage given to him by the plaintiff, which, through his own deliberate failure in performance, left no debt remaining unpaid or obligation to be performed. Walton v. Ruggles, 180 Mass. 24. Indeed it would be anomalous, if after losing her estate through the defendant’s contracturai breach, as well as by abuse [557] of his trust, the plaintiff also must pay the amount of the mortgage note as a gratuity. Paro v. St. Martin, 180 Mass. 29, 31. Rolikatis v. Lovett, 213 Mass. 545. But, as the damages assessed for the loss of the equity of redemption exceeded the total amount due the defendant, he was properly charged with the difference, and the decree ordering the discharge of both mortgages, and payment of the damages being in accordance with what has been said, it should be affirmed with costs. American Stay Co. v. Delaney, 211 Mass. 229, 233. Newburyport Institution for Savings v. Puffer, 201 Mass. 41. Ordered accordingly.