Stevens v. Hayden

A bill in equity alleged that the plaintiff mortgaged a tract of land with a house thereon to A., and, as additional security, obtained a policy of insurance against fire, payable to the mortgagee in case of loss; that the plaintiff made a second mortgage to B., and subsequently conveyed the estate in fee to C., who assumed and agreed to pay the two mortgages; that C. afterwards conveyed the estate to D., who also assumed and agreed to pay both mortgages; that A., on receiving the amount of his note and mortgage, assigned the same, when overdue, to a bank, to hold as collateral security for the joint note of D. and E. to the bank, upon the payment of which the mortgage was assigned by the bank to E.; that the building insured was destroyed by fire, and D. and E. received a certain sum in settlement of the loss; that E. assigned the note and mortgage to E. after the plaintiff was entitled to have the insurance money indorsed on the note; and that the estate was not sufficient for the paymen of the mortgages, unless the money so received was applied in payment. The only persons named in the bill as defendants were D. and E. The prayer of the bill was that “ the defendants ” be ordered to indorse the insurance money on the note secured by the first mortgage, and to cancel the mortgage to that extent; and for general relief. Held, on demurrer, that the bill could not be maintained.

Bill in equity, alleging that on or about November 2, 1874, the plaintiff was the owner of a certain tract of land, with a dwelling-house thereon, situated in Boxford in the county of Essex; that on or about November 2, 1874, she conveyed the said premises in mortgage to Julius A. Palmer, Jr., trustee, to secure the payment of her note for $2000, of even date with the mortgage, and payable with interest at eight per cent per annum in three years from November 2, 1874; that, pursuant to the condition in said mortgage, she procured, at her own expense,, a policy of insurance against fire, to the amount of $2000, on said dwelling-house, and caused the same to be made payable, in case of loss, to Julius A. Palmer, Jr., trustee, mortgagee, as additional security for the payment of said note and mortgage to him; that, on or about July 1, 1876, she made a second mortgage of the premises to Edwin Eames, to secure the payment of her note for $1500 in one year from July 1, 1876, with interest thereon at the rate of six per cent per annum, payable annually; that, on or about June 1, 1877, she conveyed the estate in fee to George H. Jones, of Chelsea in the county of Suffolk, who assumed and agreed to pay said mortgages; that the plaintiff, at the request of Jones and as a part of the contract of sale, caused the time of payment of the second mortgage to be extended until January 1,1879, by Eames, and, in order to obtain such extension, the plaintiff was obliged to and did advance to Eames, from time to time, large sums of money, amounting in all to nearly the entire amount of the second mortgage, upon the understanding and agreement that the same should be repaid to her when the second mortgage was paid; that, in November 1877, the said dwelling-house was wholly destroyed by fire; that on or about , 187 , Jones conveyed said estate in fee “to the defendant William D. Hayden,” of Somerville, he assuming and agreeing to pay said mortgages as part of the consideration for the sale to him by Jones; that Palmer demanded of William D. payment of said first-named note and mortgage, and William D. and his brother, Joseph O. Hayden, of Somerville, “the other defendant,” upon their joint note, borrowed of the First National Bank at East Cambridge the amount due on said first note and mortgage, and paid the same to Palmer, and, instead of taking a discharge of the first mortgage by Palmer, caused the same to be conveyed by Palmer to John C. Bullard, cashier of said bank, as security for the payment of said note of William D. and Joseph O.; and, upon payment of said last-named note, said Bullard assigned said first note and mortgage to Joseph O. Hayden; and at the time Palmer demanded payment, and was paid as aforesaid, said first note and mortgage was overdue; that thereafterwards William D. Hayden and Joseph O. Hayden demanded of said insurance company, under and by virtue of the insurance policy, payment for the loss of said house, and, on or about March 25, 1878, they received from the insurance company the sum of $1500, in settlement of the loss; that nothing has been paid by or on behalf of Jones or William D. Hayden, on account of her said second mortgage, and, by reason of the destruction of said house, the remaining estate is not sufficient security for the payment of $1500 unless the amount received by William D. Hayden and Joseph O. Hayden shall be applied in payment of said first mortgage; that William D. Hayden sold said first mortgage, and the note thereby secured, to George H. Burrows, of Boston; and Joseph O. Hayden assigned the same to Burrows on or about July 1, 1878, and long after the same was overdue, and after the plaintiff was entitled to have said $1500 indorsed on said note. The prayer of the bill was that “ the defendants ” be required to answer the allegations of the bill, but not under oath, and that a subpoena in due form issue; that “the defendants” be ordered to indorse upon the note secured by said first mortgage the payment of $1500 as of March 25, 1878, and to cancel the mortgage to that extent; and for further relief; that a writ of injunction issue, restraining Joseph O. Hayden and George H. Burrows from transferring said first mortgage, or the note secured thereby, and from foreclosing said note and mortgage. W. D. Hayden and J. O. Hayden demurred to the bill for want of equity. Ames, J. overruled the demurrer; and these defendants appealed.