206 Mass. 599 | Mass. | 1910
The plaintiff is the holder of a mortgage upon real estate and the male defendant is tlie owner 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 price. 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 plaintiff and this defendant supposed that this was the first and only mortgage on the property until after the plaintiff had begun proceedings to foreclose it, when it was discovered that there was a prior 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 proceedings 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 mortgages, 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 agreed facts and the inferences drawn from them the judge rightly found that, after the discontinuance of the proceedings to foreclose, each party was free to proceed
The only question in the case is whether the implied agreement of the first defendant with his grantor, to assume and pay the plaintiff’s mortgage, founded on the recital in the deed, precludes him from buying and holding the first mortgage. This agreement was not with the plaintiff, and the plaintiff cannot bring an action at 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 acceptance 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 grantor 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, for 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 a 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 effect of the agreement as between the immediate parties to it we find this language in the latter case: “ 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 reserved 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
Bill dismissed.
