311 Mass. 168 | Mass. | 1942
Merrill, on October 25, 1910, gave a note to the plaintiff, hereinafter called the bank, in the sum of $15,000, payable in five years, and secured by a mortgage on premises in Boston owned by him. The note was witnessed by one Sawyer. Merrill conveyed these premises to Bradlee on May 29, 1911, subject to the bank’s mortgage, which Bradlee agreed to assume and pay. After making this conveyance, Merrill had no interest in the property and did “Nothing whatever” in connection with the mortgage. He made no payments upon the note nor any written acknowledgment of the indebtedness nor any subsequent promise to pay it. He did not know what, if anything, was due upon the note until the bank made a demand for payment upon him early in 1941. Bradlee made payments on interest and on principal from the time she became the owner until February 10, 1941. Merrill appealed from a final decree ordering him to pay the balance due on the note, which was entered after a hearing upon a bill of complaint, brought against Merrill to establish an indebtedness against him upon the note and to reach and apply to the satisfaction of this indebtedness the obligation of Bradlee to Merrill to pay this indebtedness in accordance with the provision in the deed conveying the mortgaged premises to her.
The mortgage note matured in 1915, but the bank, the payee, could enforce it at any time thereafter within the period of twenty years, as the note was signed in the presence of an attesting witness. G. L. (Ter. Ed.) c. 260, § 1, Third. Phillips v. Vorenberg, 259 Mass. 46. Alpert v. Radner, 293 Mass. 109. The bill of complaint, however, was not filed until March 15, 1941. The bank contends that the payments made by Bradlee tolled the statute of limitations respecting Merrill.
All the payments made after Merrill sold the property were made by Bradlee with her own money to reduce an encumbrance upon her property. The payments were made
The theory upon which it has been held that a part payment will take an indebtedness out of the operation of the statute of limitations is that such payment is an acknowledgment that an indebtedness exists and, from the payment, the law implies a new promise to pay the balance. But in order to have this effect the circumstances attending the part payment must be such as to support a fair and reasonable inference that the debtor intended to renew his promise of payment. There is nothing upon this record that will warrant such an inference. Pond v. Williams, 1 Gray, 630. Stoddard v. Doane, 7 Gray, 387. Campbell v. Baldwin, 130 Mass. 199. Taylor v. Foster, 132 Mass. 30. Gillingham v. Brown, 178 Mass. 417. Emerson v. Deming, 304 Mass. 478. Lariviere v. Lariviere, 304 Mass. 627. Credit Service Corp. v. Barker, 308 Mass. 476.
The final decree is reversed and a decree is to be entered dismissing the bill with costs.
Ordered accordingly.