Sandler v. Silk Et Al‪.‬

RUGG, Chief Justice. The declaration in this action of tort contains two counts for the same cause of action. In the first count there is alleged a conspiracy by the defendants fraudulently to foreclosure a second mortgage upon certain real estate without protecting the rights of the mortgagor or persons taking under him, including the plaintiff, in order to defeat an attachment held by the plaintiff; in the second count there is alleged a fraudulent foreclosure of such mortgage in the same circumstances. The present defendants are Silk, Tefft and Trachtenberg. They pleaded a general denial and res judicata. The plaintiff previously brought a suit in equity to set aside this mortgage as void against the present defendants and two others, Smith and Marcus, which was dismissed by final decree after rescript. Sandler v. Silk, 269 Mass. 562, 169 N.E. 431. At the trial of the present action the parties agreed to submit the issue as to liability upon the record of the proceedings in that suit in equity, exclusive of the testimony of witnesses but inclusive of the findings of the trial Judge. No other evidence was introduced on liability.