Goodenough v. LabrieGoodenough v. Labrie
- Reporters:
- , ,
- Before:
- Knowton
Thе plaintiff is the holder of a mortgage upon real estate and the male defendant is tlie ownеr of the equity of redemption. This defendant’s title is derived under a series of quitclaim deeds, each reciting the existence of this mortgage, and the later ones containing a recital that the grantee assumes and agrees to pay the mortgage as a part of the purchase pricе. The first of them, that made by the mortgagor to the first grantee of the equity of redemption, merely states the existence of the mortgage, without anything in regard to the assumption or payment of it. Both the рlaintiff and this defendant supposed that this was the first and only mortgage on the property until after the рlaintiff had begun proceedings to foreclose it, when it was discovered that there was a priоr mortgage duly recorded, upon which about $600 was due, and that there were sundry other serious defects in the title. On account of the existence of the prior mortgage, the plaintiff discontinued the рroceedings for foreclosure, to see what could be done in reference to the title. The defendant took measures to perfect the title except as to these mortgagеs, and he procured an assignment of the first mortgage to be made to his daughter, the other defendant, for- a consideration furnished by him. He must, therefore, be treated as the owner of the first mortgage. The plaintiff brings this bill, asking that the assignment to the daughter be treated as a discharge of the first mortgage and that she be enjoined from selling, assigning, transferring or foreclosing the mortgage.
From the statement of agrеed facts and the inferences drawn from them the judge rightly found that, after the discontinuance of the рroceedings to foreclose, each party was free to proceed *601in the way whiсh seemed to him best to protect his own interests. In connection with these proceedings and thе discontinuance of •them nothing occurred that affected the rights of the defendants in regard to thе first mortgage.
The only question in the case is whether the implied agreement of the first defendant with his grantоr, to assume and pay the plaintiff’s mortgage, founded on the recital in the deed, precludes him frоm buying and holding the first mortgage. This agreement was not with the plaintiff, and the plaintiff cannot bring an action аt law to enforce it. Coffin v. Adams, 181 Mass. 133. Borden v. Boardman, 157 Mass. 410,412, and cases cited. It was not a covenant. The acceptanсe of the deed merely created an implied contract of the defendant, upon which the grantor can sue in assumpsit to recover any damages which he suffers from the breach of it. But this grantоr was under no liability on account of the mortgage, except that founded upon a similar implied contract with his grantor; and the first of these grantors after the conveyance of the equity by the mortgagor was under no liability; for the deed to him did not require him to assume the mortgage. Neither this defendant nor any of the other preceding grantees made any agreement in regard to the first mortgage, fоr they all, like this plaintiff, were ignorant of its existence. Their only agreement relates specifically to the plaintiff’s mortgage, and no one of them made any agreement with the plaintiff himself, but only with а third party.
The nature and effect of such an agreement are considered at length in Locke v. Homer, 131 Mass. 93, and Rice v. Sanders, 152 Mass. 108. Of the effеct of the agreement as between the immediate parties to it we find this language in the latter сase: “ It is said in many cases, that primarily the mortgage is a charge upon the land, but it would be more accurate to say that it is made primarily a charge upon the purchase money reservеd by the grantee to pay it.” As this purchase money is not required to be furnished at the time by the grantee, but is allowed to remain in his hands, where it is represented by the land, this charge takes effect upon the land, as between the immediate parties to the contract. That is, it takes effect upon the estate which is conveyed and for which the grantee is to pay. Applying this principle in the present case, even as between the parties *602to the implied agreement, the plaintiff’s mortgagе was treated as a charge only upon the estate which the grantor purported to convey, and which, by the terms of the quitclaim deed, was only his right, title and interest in the property, whatever that might prove to be. It now appears that the estate conveyed was subject to the first mortgage, of which they were then ignorant, and, as between the contracting parties, the plaintiff’s mortgage was not charged upon so much of the property as is required to satisfy the first mortgage. There wаs not only no contract between these parties, but there is no privity of contract by way of сovenant, nor any privity of estate that creates a legal or equitable estoppel against the defendants or either of them to prevent them from holding the first mortgage against the plaintiff, after a purchase of it. McCabe v. Swap, 14 Allen, 188. Lydon v. Campbell, 198 Mass. 29. 2 Pom. Eq. Jur. § 798.
Bill dismissed.