296 Mass. 1 | Mass. | 1936
The plaintiff holds a second mortgage note for $2,800, dated June 22, 1932, payable in'instalments, and
On August 9, 1932, Secunda and the defendant John Borgo entered into a written agreement for the sale of said premises to said John Borgo for the price of $12,700, of which $500 was paid as a deposit. The agreement' provided that the premises should be conveyed subject to a first mortgage for $8,000 and a second mortgage to the plaintiff for $2,800, and that the balance of the purchase price, $1,400, should be paid in cash. The agreement provided: “If . . . [Secundo] shall be unable to give title or to make conveyance as above stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereunto shall cease, but the acceptance of a deed and possession by . . . [Borgo] shall be deemed to be a full performance and discharge hereof.”
In performance of this written agreement, Secunda gave a deed, not to John Borgo alone, but to the defendants John Borgo and Margaret M. Borgo, husband and wife. Following the description, the deed provided as follows: “Said premises are conveyed subject to a mortgage of Eight thousand Dollars held by the Berkshire County Savings Bank which the grantee [sic] assumes and agrees to pay. Also a second mortgage in the sum of two thousand eight hundred ($2,800) dollars in favor of Martha A. Rhoades.”
This bill was brought under G. L. (Ter. Ed.) c. 214, § 3 (7), to reach and apply to the payment of the debt due from Secunda her alleged right to exoneration by the defendants John Borgo and Margaret M. Borgo. Forbes v. Thorpe, 209 Mass. 570, 582. Evans, Coleman & Evans, Ltd. v. Pistorino, 245 Mass. 94. Bloch v. Budish, 279 Mass. 102,
Taking the language of the deed by itself, it is at least arguable that the assumption (Locke v. Homer, 131 Mass. 93, 109) extended to the second mortgage as well as the first. After providing specifically that the grantees (for the singular words should be read in the plural; see G. L. [Ter. Ed.] c. 4, § 6, Fourth, Goodman v. Telfer, 230 Mass. 157, Allen v. Chas. E. Howe Co. 261 Mass. 355, 356, Cummings v. Tolman, 292 Mass. 58, 62) shall receive a conveyance subject to the first mortgage and shall assume and pay that mortgage, the reference to the second mortgage is begun by the word “Also.” A natural and reasonable construction is that the second mortgage is to be treated like the first mortgage. If there be any doubt, it is permissible to resort to the written agreement which was the foundation of the deed, even though as an enforceable instrument it did not survive the deed (Drury v. Tremont Improvement Co. 13 Allen, 168, 171), and even though the defendant Margaret M. Borgo was not a party to the agreement. The agreement, in its provisions relating to the price and its payment, could be satisfied only by an assumption of both mortgages. Bray v. Hickman, 263 Mass. 409, 414, 415. Flynn v. Kenrick, 285 Mass. 446, 448, 449. In view of that agreement, any doubt of the meaning of the deed, taken by itself, should be resolved in favor of an assumption of the plaintiff’s mortgage by the grantees, the defendants John Borgo and Margaret M. Borgo.
Decree affirmed with costs.