Fiske v. Tolman

| Mass. | Mar 25, 1878

Ehdicott, J.

It is settled in this Commonwealth, that, where land is conveyed in terms subject to a mortgage, the grantee does not undertake, or-become bound by the mere acceptance of the deed, to pay the mortgage debt. In the absence of other ■ evidence, the deed shows that he merely purchased the equity of redemption. Strong v. Converse, 8 Allen, 557. Drury v. Tremont Improvement Co. 13 Allen, 168. He is indeed interested in its payment, because it is an incumbrance on the land of vhich he is the owner; but he has entered into no obligation, express or implied, to pay it, and if he parts with his title he no longer has any interest in its payment.

But if a grantee takes a deed, containing a stipulation that the land is subject to a mortgage which the grantee assumes or agrees to pay, a duty is imposed on him by the acceptance, and the law implies a promise to perform it, on which promise, in case of failure, assumpsit will lie. Pike v. Brown, 7 Cush. 133 Braman v. Dowse, 12 Cush. 227. Jewett v. Draper, 6 Allen. 434. Furnas v. Durgin, 119 Mass. 500" court="Mass." date_filed="1876-02-29" href="https://app.midpage.ai/document/furnas-v-durgin-6418422?utm_source=webapp" opinion_id="6418422">119 Mass. 500.

In the case at bar, there is no such stipulation in the deed. The nominal consideration is $11,000, and the conveyance is made “ Subject, however, to a mortgage .... of $7000, which is part of the above-named consideration.” A promise to pay the mortgage debt cannot be inferred from the acceptance of the deed, on the ground that the clause contains this reference to the consideration. Taken by themselves, the words do not necessarily imply any obligation to be performed by the grantee. They are to be considered rather as additional words of recital or description, showing that the whole amount of the consideration was not paid or intended to be paid, but that the grantee had purchased only an equity of redemption. And this is confirmed by the statement in the bill of exceptions, that the value of the equity in this land, as estimated by the parties, when exchanged for other land, was $4500 only. This sum represented the amount paid by the grantee. See Trotter v. Hughes, 2 Kernan, 74; Belmont v. Coman, 22 N.Y. 438" court="NY" date_filed="1860-12-05" href="https://app.midpage.ai/document/belmont-v--coman-3586787?utm_source=webapp" opinion_id="3586787">22 N. Y. 438.

Exceptions overruled.