Drury v. Tremont Improvement Co.

95 Mass. 168 | Mass. | 1866

Chapman, J.

It appears that the Tremont Improvement Company owned a tract of land, containing 159,420 square feet, which was subject to a mortgage made by S. M. Allen to Charles M. Parker, to secure, among other things, a note for $9675.05. They sold to the plaintiff 100,000 feet of this land on the 24th of March 1860, and their deed contained a covenant against this incumbrance. On the 31st of August 1864 they conveyed to the plaintiff the remainder of the land. The consideration stated in the deed was $2497.90, which was ackowledged to be paid in the usual form ; and the deed contains the following clause: “ The premises being subject to a mortgage from Stephen M. Allen to Charles M. Parker, dated March 29, 1859, on which the sum of $9675.05 remains unpaid.” The general covenants of warranty are followed by the clause, “ ex cept against the incumbrances hereinbefore set forth.”

The plaintiff thus took the last mentioned tract, subject to the mortgage, to secure the amount stated. If the deed had stated that the grantee assumed the debt, or something to that effect, the plaintiff would, by accepting the deed, have become personally liable to pay the debt. Braman v. Dowse, 12 Cush. 227, and cases there cited. But, as nothing of the kind is stated, the mere acceptance of the deed did not make him personally liable to pay the debt or discharge the incumbrance. In the absence of other evidence, the deed shows that he merely purchased the equity of redemption.

The plaintiff contends that the deed is conclusive evidence of the contract between the parties, and that no other evidence is admissible on the subject. But as to the consideration which was paid the deed is not conclusive. The acknowledgment of payment may be controlled by paroi evidence of an additional or a different consideration. Paige v. Shermam, 6 Gray, 511. Miller v. Goodwin, 8 Gray, 542.

The defendants put in evidence a written proposal made by the plaintiff to them, for the purchase of the land, which was received by the company on the 27th of August 1864, and on the 31st of the same month they voted to accept it, and authorized their president to execute conveyances. The plaintiff contends that the vote is not an acceptance of his written proposal, because it includes a piece of land on Parker Place, while his proposal does not refer to that piece. But as it appears that it was a small piece lying beside the other tract, and covered with private ways, and was included without any additional consideration, and the plaintiff accepted the deed without objection, and it does not appear that he made any other offer, we think the vote referred to the written proposal, and the deed was an acceptance of it.

The amount of money paid and the subsequent conduct of the plaintiff are conformable with the proposal, and we thiñk it states the consideration which was to be paid for the conveyance. By this proposal he assumed the payment of the note, and, as between him and the company, it became his duty to pay it.

The company have not attempted to enforce the mortgage; but the other defendants, who are directors of the company, became guarantors of the note, and, having been obliged to pay it, they have taken an assignment of the mortgage, and are attempting to enforce it. We do not think the plaintiff has any equitable right to restrain them from doing this; for though his agreement is not a technical release of the covenant of warranty contained in the first deed to him, yet, in equity, an agreement under seal may be discharged by matter in pais; for equity looks at the substance of things, and not to the form of agreements. Adams on Eq. 106. If the plaintiff could maintain this bill even against the company, it would be contrary to the maxim that he who seeks equity must do equity. Upon the construction which the court have given to his proposal, it is his duty to pay the note, and when he does this he will be relieved from the incumbrance. Bill dismissed with costs.