Lappen v. Gill

129 Mass. 349 | Mass. | 1880

Ames, J.

It has been repeatedly decided that, if a grantee takes a deed containing a stipulation that the land is subject to a mortgage which he assumes or agrees to pay, a duty is imposed upon him by the acceptance of the deed, and the law implies a promise to perform it, on which promise, in case of breach, assumpsit will lie. Fiske v. Tolman, 124 Mass. 254, and the cases there cited. This defendant accepted such a deed, and has failed to pay the mortgage which he thereby assumed and agreed to pay. The plaintiff thereupon paid the mortgage debt, and has brought this action to recover the amount so paid. It is true that, instead of cancelling the note and mortgage, he has had them assigned to himself, but, in such a state of facts, such an assignment to the promisor of his own note and mortgage can have no other effect than as.a discharge of the debt. Brown v. Lapham, 3 Cush. 551. The transaction was in substance and effect a payment of the debt. Carlton v. Jackson, 121 Mass. 592. The facts which the defendant offered to prove, as to the trust under which the plaintiff held the land at the time of the mortgage, do not appear to us to furnish any ground for relieving the defendant of his legal obligation, and the evidence was therefore properly excluded. Even if the evidence as to the trust had been received, the payment was still for the defendant’s benefit.

Exceptions overruled■.