Muhlig v. Fiske

131 Mass. 110 | Mass. | 1881

Gray, C. J.

To constitute a legal delivery of a deed, there must be an acceptance thereof on the part of the grantee. If the deed of conveyance from the plaintiff to the defendant was delivered by the grantor and accepted by the grantee, the latter thereby assumed the duty of performing according to its terms the promise therein expressed to be made by him. By the terms of that promise, he “ assumes and agrees to pay,” as well as to “ save the grantor harmless from,” the mortgage of $1500. The agreement to assume and pay the mortgage includes the interest as well as the principal. Shanahan v. Perry, 130 Mass. 460. And upon a breach of this agreement, by failure to pay a sum due and payable, the grantor may sue the grantee and recover that sum if remaining unpaid. Furnas v. Durgin, 119 Mass. 500. Locke v. Homer, ante, 93.

The defendant, having, by the delivery which the jury have found, accepted the deed of conveyance and thereby obtained the estate which he afterwards conveyed to a third person, and so made himself liable to the burden which by the terms of the deed he had assumed, could not (no fraud in the execution or delivery of the deed being suggested) impair the legal effect of his own act by oral evidence that he had never agreed to assume and pay the mortgage, nor authorized nor knew of the insertion of such an agreement in the deed. Such evidence, except so far as it tended to show that there had been no delivery of the deed, was therefore rightly excluded, independently of any question of pleading. Coolidge v. Smith, 129 Mass. 554. Blyer v. Monholland, 2 Sandf. Ch. 478.

But the defendant offered evidence tending to show that the estate had been duly sold, under the power contained in the mortgage, for a sum sufficient to pay the principal and interest of the mortgage debt, expenses of sale, and all known incumbrances ; and that the mortgagee had refused to execute a deed to the purchaser, and had thus by his own fault prevented the debt to him from being fully paid. If this was proved, it would operate as a payment or extinguishment of the mortgagee’s claim against the plaintiff on the mortgage note. Howard v. Ames, 3 Met. 308. Hood v. Adams, 124 Mass. 481, and 128 Mass. 207. And, in that event, the plaintiff could recover in this action nominal damages only. Furnas v. Durgin, 119 Mass. 508. Locke v. Homer, ante, 96, 108, 109.

The only objection made by the plaintiff to the validity of the proceedings was that the purchaser had not paid down fifty dollars in cash as required by the terms of sale. The bill, of exceptions shows that the purchaser, when he bid off the estate, did not have fifty dollars, and there was no actual transfer of money from him to the auctioneer employed by the mortgagee; but that the auctioneer agreed to advance this sum to the purchaser, took from him his note for the amount, and told the mortgagee that the purchaser had paid the fifty dollars, and that the same was ready for him. The defendant asked that the jury might be instructed that, if such was the arrangement, and the auctioneer was ready to pay, and the mortgagee did not object, it was .immaterial whether the fifty dollars was paid by the auctioneer to the purchaser and back again by the purchaser to the auctioneer, or not. The presiding judge declined to give the instruction requested; but instructed the jury that the mortgagee was not obliged to look to the auctioneer for a credit of fifty dollars, and that if there was no payment of the fifty dollars, and nothing but a transfer of credit, the terms of sale had not been complied with, unless the mortgagee consented to such an arrangement or ratified it.

We are of opinion that the defendant was entitled to the instruction which he requested. That instruction- required the jury to find that the money was in the hands of the auctioneer ready to be paid to the mortgagee, which distinguishes the case from Broughton v. Silloway, 114 Mass. 71. If the fifty dollars had been in fact paid by the purchaser to the auctioneer, the mortgagee would have had to look to the auctioneer for that sum. If the auctioneer had agreed to advance that sum to the purchaser, taking his note therefor, and himself had the amount ready to be paid to the mortgagee and told him so, the latter had exactly the same right and the same security. In either case, the money, by virtue of what had taken place between the purchaser and the auctioneer, was actually in the hands of the auctioneer, ready for the mortgagee. The instruction given did not notice this fact, and must have been understood by the jury as treating it as of no importance. Exceptions sustained.