99 Mass. 338 | Mass. | 1868
It is to be regretted that the claim which is the foundation of the present suit was not passed upon when it was before us in the action at law. Ball v. Wyeth, 8 Allen, 275. It was then decided that the defendant was protected by the special statute of limitations in favor of executors, and it was therefore unnecessary to determine whether the claim was valid upon other grounds. But this suit is brought under the provisions of the St. of 1861, c. 174, § 2, and the St. of 1863, c. 235, which were passed for the purpose of furnishing a remedy to a creditor of a deceased person whose debt was barred b.y that special statute of limitations, when he had not been guilty of culpable neglect in failing to collect it at law, and when justice and equity might require it to be enforced.
We see no reason to modify the expression of the grave doubt which was suggested in Prentice v. Dehon, 10 Allen, 353, of the authority of the legislature to give an action for the recovery of a debt already barred under a general statute of limitations, by a statute passed after the bar is complete. But, without determining that point, or considering how far there would be any requirement of justice and equity that this suit should be maintained, the court are of opinion that there was no debt due to the plaintiff’s testator for which he was entitled to an action against the defendant’s testator, irrespective of the statute if limitations, at the time this bill was filed.
There is no doubt of the principle for which the plaintiff eon tends, that the original letter of credit created a debt from N. J Wyeth to Jarvis, for which a mortgage was given; and that giving a mortgage or other security for a subsisting debt does not extinguish or merge the personal liability. But there can be as little doubt that it is competent for parties to agree that the creditor shall look only to the security for his reimbursement, and that the debtor shall be absolved from all personal obligation ; and such, we are satisfied from the whole evidence in the case, was the understanding and agreement between the parties to this transaction.
The mortgage which was given to save Jarvis harmless frorr ‘he letter of credit on George Peabody, and to secure the pay
The form of this transaction was, the sale by N. J. Wyeth of the equity of redemption of the Assabet estate, and applying the purchase money to the discharge of the mortgage debt. He was a relative of Jarvis, and undoubtedly upon terms of friendship with him. He gave no note or other form of personal obligation for the $15,000. It was expressed as the consideration of the purchase of the estate; and in the agreement for the payment of it to Leonard J. Wyeth, it was spoken of as the money paid for the land. The indenture of defeasance executed at the same time, by which it was stipulated that N. J. Wyeth might redeem or repurchase the estate, may have made it, in the view of a court of equity, a mortgage. But while equity will sometimes treat as a mortgage a conveyance absolute in form, accompanied by an agreement for a reconveyance, it does not
We are therefore, on the whole, of opinion that, when the conveyance of the Assabet estate was made in August 1852, it was the intention and understanding of the parties that it should operate as an extinguishment and satisfaction of the debt from Wyeth to Jarvis which grew out of the letter of credit; that no note or bond was given, because it was agreed that Jarvis should rely wholly upon the real estate for his security ; that the value of the estate was supposed to be so great that it would be for the interest of Wyeth to redeem it, and the chief care was taken to secure to him the right to do so within reasonable limits, and, as equity will not raise a personal obligation which the parties did not contemplate, that the judgment in this suit should be Bill dismissed with costs.