177 Mass. 318 | Mass. | 1901
This is a bill to compel the defendant to pay a mortgage upon his own and the plaintiff’s adjoining land to one Marcia Norris, the mortgagee. The case is simple. After the mortgage was executed, Elbridge M. Pearson, the mortgagor and owner of the two lots covered by it, conveyed one to the defendant by a deed poll, “ subject to a mortgage . . . which said Bailey is to assume, it being a part of above consideration.” At a later day the mortgagor conveyed the other lot by a deed poll which stated that it was subject to the mortgage, but not that the grantee was to assume the mortgage. The last mentioned lot came by mesne conveyances to the plaintiff, who now seeks to avail herself of the provision in the deed to Bailey.
It is not disputed that Bailey made a simple contract by the acceptance of the deed to him. Locke v. Homer, 131 Mass. 93, 102, 109. But the question is raised what if any rights the plaintiff gets by reason of that fact and the coming of the other land to her. Notwithstanding some suggestions in the argument, probably it is unnecessary to say that there is no covenant here, and that the doctrine of covenants running with the land has no application. Martin v. Drinan, 128 Mass. 515. The contract does not purport to be made with the mortgagor as owner of the adjoining land and for its benefit. See Hogan v. Barry, 143 Mass. 538. It is a purely personal undertaking with a debtor to relieve him of his debt, — to what extent need not be considered now. With certain traditional exceptions, such a promise by a natural person, even if it were a covenant and much more nearly concerning the landowner as such than this, is not of a kind to pass with land under the ancient doctrine of the common law. Walsh v. Packard, 165 Mass. 189, 192. Cases like Whittenton Manuf. Co. v. Staples, 164 Mass. 319,
The benefit of the contract as a contract goes to the plaintiff no more in equity than by the common law. The promise in its entirety does not concern the plaintiff’s interests. The only question is whether the plaintiff can get any help from it to relieve her land. Of course as between the defendant and his grantor one consequence of the agreement was that the burden of the mortgage was thrown on the defendant’s land alone to the exoneration of the other parcel, and if Elbridge Pearson had seen fit to convey his land as free from the mortgage the plaintiff would have taken it free as against the defendant, not on the ground of succession to the rights of Elbridge Pearson, but because in no other way could the rights of Elbridge Pearson be made effectual. Such cases occur elsewhere in the law. Ex parte Waring, 19 Ves. 345, 350. Rindge v. Sandford, 117 Mass. 460, 463. For the same reasons, if the deeds were recorded, subsequent purchasers of the two parcels would have taken them subject to their respective rights and burdens. That was what was decided in Jager v. Vollinger, 174 Mass. 521. In that case the original contractee conveyed his second parcel free of all encumbrances by warranty deed. Possibly the same result would have followed from a mere omission to mention the mortgage, without a warranty against it. But in the present case, perhaps for some such reason as is suggested by the defendant’s answer, Elbridge Pearson conveyed his other lot subject to the mortgage. He did not see fit to avail himself of the estoppel against the defendant, as he might have done on the face of the papers before us, in order to enhance the consideration which he received, by conveying the land as unencumbered. It follows that the plaintiff cannot claim the benefit of an estoppel of the defendant as against Elbridge Pearson when it is not necessary to give it to her in order to preserve any of Elbridge Pearson’s rights. It is unnecessary to go further, and we do not consider other objections which are urged against the plaintiff’s case. But we may add by way of caution that even if the plain
It will be understood that this decision is without prejudice to any question of the plaintiff’s right to require contribution from the defendant in case she pays the whole mortgage.
Bill dismissed.
