Opinion
June 10, 1947.
R.T. Capeless, ( L.S. Cain with him,) for the defendants.
W.J. Donovan, ( O.D. Marshall with him,) for the plaintiff.
Appeal waived. This is a bill in equity for authority to foreclose a mortgage, brought because of the soldiers' and sailors' civil relief act of 1940. See St. 1943, c. 57; St. 1945, c. 120. The case was argued with the companion case of Paul A. Tamburello, trustee in bankruptcy, vs. Michael L. Monahan and others, in which this court has held this day [ ante, 445] that a former purported foreclosure sale under the same mortgage was void. At the argument, counsel for Tamburello announced in open court that Tamburello waived the appeal which appears in the record as having been taken by him. We therefore treat the appeal as waived without considering whether Tamburello as trustee in bankruptcy ever became a party to this suit, or whether the mortgage which the plaintiff seeks to foreclose has been assigned by the conveyance of the property by the plaintiff to the defendant Fleming. See Holmes v. Turner's Falls Co. 142 Mass. 590, 591; Harlow Realty Co. v. Cotter, 284 Mass. 68, 72-73.