303 Mass. 343 | Mass. | 1939
This action of contract was brought in the District Court — by writ dated October 19, 1936 — to recover damages from the defendant because of his failure to pay a mortgage that he assumed and agreed to pay on real estate that the plaintiff sold to the defendant.
The case was heard upon an agreed statement of facts, which included the following facts: “The plaintiff purchased the property on July 17, 1923, and on the same day placed a mortgage thereon for $1200 running to the
The plaintiff made requests for rulings which were granted, and the defendant made requests for rulings, of which some were granted and others were denied. There was a finding for the plaintiff, and a report to the Appellate Division which was dismissed. The defendant appealed.
The only contention made by the defendant is that recovery by the plaintiff is barred by the statute of limitations because the action was not commenced within six years from July 17, 1924, the day when the mortgage became due. This contention cannot be sustained.
The deed from the plaintiff to the defendant does not appear to have been signed and sealed by the defendant, and consequently he was not bound by it as by a deed. The defendant, however, by accepting this deed containing the provision that he "assumes and agrees to pay” the mortgage became bound to do so by reason of his promise
The implied contract of the defendant to assume and pay the mortgage bound him to pay the note secured thereby at its maturity, that is, on July 17, 1924. Braman v. Dowse, 12 Cush. 227, 229. Locke v. Homer, 131 Mass. 93, 105. This is the force not only of the word “pay” (see Rice v. Sanders, 152 Mass. 108, 111), but also of the word “assumes.” See Locke v. Homer, 131 Mass. 93, 109. Indeed, the defendant’s agreement was to pay on that date an amount which would discharge both the note and the mortgage given to secure it. Locke v. Homer, 131 Mass.
Sometimes a deed provides expressly not only that the grantee shall pay the mortgage, but also that he shall save the grantor harmless, that is, indemnify him for any loss sustained. Such a provision in a deed does not restrict the effect of the grantee’s promise, implied from acceptance of the deed, to pay the mortgage. Locke v. Homer, 131 Mass. 93, 109. Where a deed is in this form the grantor, it seems, has the option to bring suit upon the implied contract to pay the mortgage or upon an implied contract of indemnity. Since there would be no breach of the latter contract until loss was sustained by the grantor, no cause of action founded upon such contract would accrue, and consequently the statute of limitations against an action so founded would not begin to run, until loss was sustained by the grantor. Peterson v. Abbe, 234 Mass. 467. But there was no express provision for indemnity in the deed from the plaintiff to the defendant and the provision that the grantee assumes and agrees to pay the mortgage, without more, does not import an obligation to indemnify the grantor for loss alternative to the obligation to pay the mortgage debt at its maturity. It follows that the plaintiff’s only cause of action accrued on July 17, 1924, the statute of limitations then began to run in favor of the defendant, and, six years having expired before this action was commenced, the action is barred unless the running of the statute was tolled. In this respect the case is distinguishable from Peterson v. Abbe, 234 Mass. 467.
The requests for rulings need not be discussed in detail. If the agreed statement of facts constituted a case stated (Frati v. Jannini, 226 Mass. 430, 431) these requests are immaterial since it was the duty of the trial judge to make a correct decision on the case stated, and a report of such a decision presented to the Appellate Division, and presents to this court on appeal, all questions of law raised by the
Order dismissing report affirmed.