349 Mass. 768

June 29, 1965

Decree affirmed. This is a bill for declaratory relief brought by The Travelers Insurance Company, a comprehensive general liability insurer of Nickerson Lumber Company, in which Travelers seeks a determination that American Hardware Mutual Insurance Company, motor vehicle liability insurer for Flax Pond Supply Company, is liable for injuries sustained by Flax Pond's employee as a result of the negligence of Nickerson's employee. American Hardware's policy provides that use of the motor vehicle "includes the loading and unloading thereof." When the injury occurred Nickerson's employee was operating a forklift and was removing some matter from a pile in order to make possible the loading of sheetrock which lay underneath. Sheetrock from another location of Nickerson's premises had already been loaded and Flax Pond's truck was standing eight to ten feet from the forklift. The judge ruled properly that the "loading and unloading" clause was inapplicable. The acts of the forklift operator were merely preparatory to loading the truck and did not constitute a use thereof. See Travelers Ins. Co. v. Safeguard Ins. Co. 346 Mass. 622, 624.


349 Mass. 768

June 30, 1965

The plaintiff entered into an unrecorded contract to purchase from Holland Realty Corporation (Holland) lot 19 of a subdivision for $28,500 and paid $3,000 as a deposit. A bank made advances on a subsequent recorded construction mortgage and released lot 19 from a prior blanket first mortgage held by the bank. Stiegel made advances upon a subsequent recorded junior mortgage. Both the bank and Stiegel knew that lot 19 had been sold but neither had knowledge of the details of the purchase contract. Although if the mortgagees in fact had possessed knowledge of the contract details other considerations might have been applicable (see International Paper Co. v. Priscilla Co. 281 Mass. 22, 29-30), their knowledge of facts merely putting them upon inquiry is not enough to charge them with notice of the plaintiff's equitable interest. McCarthy v. Lane, 301 Mass. 125, 128-129. Tramontozzi v. D'Amicis, 344 Mass. 514, 517. The plaintiff thus has no equity superior to their mortgage interests with respect either to her deposit or to later advances voluntarily made by her. She also is not entitled, upon the master's findings, as against Stiegel to subrogation to the claim of one L. L. Bousquet, Inc., the holder of a blanket junior mortgage upon lot 19 (as of record prior in lien to Stiegel's mortgage), by reason of her payment of $3,000 for a release of lot 19 from the Bousquet mortgage. The final decree is reversed and a new decree is to be entered dismissing the bill as against the bank and Stiegel. The final decree with respect to the damages in the plaintiff's claim against Holland is not clear. The case is to stand for further hearing

Page 769

on this issue. Watkins v. Simplex Time Recorder Co. 316 Mass. 217, 224.