Porter v. Stuart

Mortgage, Of personal property. Equity Jurisdiction, To compel restoration of property obtained by fraud. Under R. L. c. 198, § 1, a mortgage of personal property, in which the mortgagor describes himself as of Boston, when his residence is in the town of Waltham, if it is recorded only in Boston and is not recorded in Waltham, and the property is not delivered to the mortgagee, is of no effect except between the parties to it, and, if the mortgagor before he made the mortgage obtained the property from its owner by fraud, such owner may maintain a suit in equity to compel its restoration to him without putting the mortgagee in the position in which he was before he took the mortgage.

Bill in equity, filed on May 24 and amended on June 28, 1907, alleging that the defendants Stuart and Sweatt obtained from the plaintiff by fraud a bill of sale of the furnishings of a lodging house, theretofore kept by the plaintiff at 72 Pinckney Street in Boston, giving in exchange a note of Sweatt and a mortgage of real estate executed by Sweatt, both of which were worthless, that the furniture was worth $1,200, that the same defendants fraudulently obtained from the plaintiff at the same time $65 in cash as the balance of a commission to the defendant Stuart for making the sale, and that afterwards the defendant Sweatt executed and delivered to the defendant Siefert a pretended mortgage of such personal property for $300; praying that the bill of sale thus obtained by fraud and also the pretended mortgage be declared void and be cancelled. The case was referred to Frederick H. Chase, Esquire, who found for the plaintiff on all the allegations of the bill. He found that the value of the furniture was $1,200 and that the plaintiff had received no part of that sum. He also found “ that in this transaction the defendants Stuart and Sweatt did not act in good faith towards the plaintiff, as each well knew; that Stuart did not act as the plaintiff’s agent for his best interests, but for his own advantage; that the defendants Stuart and Sweatt acted together hr this transaction in pursuance of a common purpose and with intent to cause the transfer of the lodging house and furniture to the defendant Sweatt without the payment of the purchase price thereof and in order that Sweatt might sell the same immediately or raise money on a mortgage thereon.” Later the case was heard by Fox, J., upon a motion to confirm the master’s report. A custodian had been appointed as keeper of the property still at 72 Pinckney Street in Boston. The judge made a final decree, “ that the master’s report be confirmed, that the mortgage to Siefert was not properly recorded, and is invalid as against the plaintiff; and, it further appearing that the plaintiff has deposited a discharge of his mortgage [of real estate executed by Sweatt] with the clerk, the custodian is hereby ordered to pay over to the plaintiff the sum remaining in his hands, namely $226.50 ; and it is further ordered that judgment be entered in favor of the plaintiff for $973.50 against the defendants Stuart and Sweatt, and that execution issue thereon.” The defendant Siefert and the defendant Stuart appealed.