165 Mass. 245 | Mass. | 1896
The defendants are husband and wife, and were jointly and severally liable to the plaintiff on a note for eight hundred dollars, dated April 1, 1886. The husband was also indebted to him for three hundred dollars for “ rent of farm,” and seventy dollars for “ hay, etc.” A note bearing date April 1, 1889, was given by the husband to the plaintiff for the rent. On the 13th of the same April, the defendants conveyed to the plaintiff certain real estate by absolute deeds, and at the same time the husband gave to the plaintiff a note for the “ hay, etc.,” and the plaintiff gave back to the wife a written agreement, not under seal, in which he agreed, according to the. testimony of the defendants, that, if he sold the property for more than enough to pay him, he would pay over the balance to her. They also testified that the deeds were given in payment of the notes. The testimony on behalf of the plaintiff tended to show that the deeds, though absolute in form, were given as collateral security for the notes, and that the agreement so stated, and were not payments.
We assume in favor of the plaintiff that the deeds and agreement constituted a mortgage, as he contended and as the court instructed the jury, though it may be doubtful if they did at law. Kelleran v. Brown, 4 Mass. 443. Flint v. Sheldon, 13 Mass. 443. Bodwell v. Webster, 13 Pick. 411. Flagg v. Mann, 14
The plaintiff contends, in substance, that this finding may have been based upon evidence which the jury were improperly allowed to consider. His contention is that the notes, agreement, and deeds constituted one transaction, and that the parties could not add to or vary by paroi the effect of the contract thus entered into. He further contends that the evidence as to payment tended to vary or add to the contract. But it is