This is a bill for specific performance of a written agreement to purchase real estate; to restrain the foreclosure of a third mortgage for $1,300; for a decree ordering that the mortgage and the note secured thereby be discharged, and that the defendants be ordered to pay the plaintiff the sum of $700 upon the execution and delivery
By agreement dated December 23, 1922, the defendant Rose Leavitt, party of the first part, was to sell, and the plaintiff Rose Richmond, party of the second part, was to purchase the real estate therein described. The party of the second part agreed to pay $12,500 as follows: $5,000 by the assumption of the first mortgage thereon; $2,400 by the assumption of the second mortgage thereon; $3,000 by delivery of a quitclaim deed, by said party of the second part to said party of the first part, of a three story brick dwelling house numbered 48 Spruce Street in Chelsea; $1,000 was to be paid in cash, "of which amount $300. have been paid this day and $700. are to be paid in cash upon the delivery of the said deed, and the remainder is to be paid by the note of the party of the second part . . . and secured by a power of sale mortgage in the usual form, upon the said premises . . . .” The agreement also provided as follows: "It is further agreed that if the party of the second part will procure a good and sufficient Quitclaim Deed to estate #52 Spruce Street, Chelsea, and deliver same to said party of the first part in or within six months from the date of passing papers, said party of the first part will accept said deed and as consideration therefor pay to said party of the second part the sum of $2,000. therefor by discharging the present third mortgage of $1100. without charge to said party of the second part, and paying the balance of $900. in cash at the time of passing papers thereon.”
The bill alleges that, on January 10, 1923, the plaintiff Shankman conveyed the property numbered 48 Spruce Street to one Jennie Rossman at the request of the defendant Leavitt, and Leavitt conveyed to the plaintiff Shankman at the request of the plaintiff Richmond, certain premises on Central Avenue, in Chelsea, subject to a first and second mortgage; that on the same day Shankman executed and delivered to the defendant Nussinow his note'for $1,300 secured by a third mortgage on the premises, which provided that "if
The mortgage from Shari km an to Nussinow, above referred to, contains the following provision: “In the event that said Grantor, his heirs or assigns shall obtain Quitclaim Deed to estate known as 52 Spruce Street, Chelsea, within six months from the date hereof, the grantee for herself, her heirs and assigns hereby agrees to accept said deed and as consideration therefor pay to the said Grantor his heirs or assigns the sum of two thousand dollars ($2,000) by payment in manner as follows viz: — by discharging the within mortgage of thirteen hundred dollars ($1300.) without expense to the Grantor his heirs or assigns and in addition thereto by paying to said Grantor the remaining seven hundred dollars ($700) in cash at the time of the delivery of such deed.” The note which the mortgage was given to secure is in the usual form and contains no reference to the above recited provision in the mortgage.
Mrs. Evelyn R. Levine, an attorney at law and daughter of the plaintiff Rose Richmond, testified that she drafted the mortgage and note to the defendant Rose Leavitt as mortgagee; and that at the registry of deeds, at the request
Rose Richmond testified that she - never saw or spoke to Nussinow until she met him in court at the hearing in the present case. Nussinow testified that he never saw the agreement before referred to; that he did not remember the plaintiff’s counsel telling him about a provision in the third mortgage relating to the Spruce Street property; that he did not at that time have the mortgage in his possession; that before he got the mortgage note and before January 10,1923, William Leavitt came to see him and told him that he (Leavitt) had arranged to sell the Central Avenue property; that at that time there was due Nussinow on the second mortgage held by him $200; that at that time he arranged to buy the third mortgage and deducted from the amount of the mortgage $200 and a charge for overdue interest on the second mortgage; that he gave Leavitt checks for the balance of the $1,300; that he received the mortgage note about two days after January 10, 1923, but did not receive the mortgage before the filing of the bill.
Rose Leavitt demurred to the bill, assigning as grounds of demurrer want of equity, misjoinder of parties, and multifariousness. The demurrer was overruled and this defendant appealed.
The case was afterward tried on the merits; the trial judge made certain findings of fact and ordered that a decree be entered dismissing the bill. The case is before this court on the appeals of the plaintiffs from this order and from a final decree dismissing the bill and ordering that costs be paid to the defendant Nussinow.
The trial judge made the following and other findings: "I find that said Nussinow, at the time of the execution and delivery of the note and mortgage last referred to, did not know the contents of and had not seen the agreement in writing mentioned in paragraph five of said bill, entered into between Rose Leavitt and William Leavitt and Rose Rich
Upon an. examination of the entire evidence, which is reported, it is plain that the findings are not without evidence to support them. The finding, that the provision in reference to the Spruce Street property was inserted without the knowledge or assent on the part of Nussinow with Leavitt or any other person, is in effect a finding that Leavitt was not the agent of Nussinow for the purpose of inserting the provision in the mortgage. From the entire evidence and the recital in the mortgage that the grantee “for herself, her heirs and assigns” agrees to accept a deed of the Spruce Street property, it is plain that Leavitt originally intended the mortgage should be made to his wife, and it was so originally drawn with that intention in mind. Nussinow, not having seen the agreement respecting the Spruce Street
The finding in effect that Leavitt was not the agent of Nussinow must stand. The contention of the plaintiffs that, even if such agency was not shown, Nussinow was bound by the terms of the mortgage, is not well founded. All the cases cited in support of that contention, which need not be reviewed, are distinguishable in their facts from those found in the case at bar. Lappen v. Gill, 129 Mass. 349, and Braman v. Dowse, 12 Cush. 227, where it was held that, if the grantee of a deed containing a provision that the grantee assumed an existing mortgage, accepted the grant, a promise was implied in law to pay it, are not applicable. In the present case Nussinow took the mortgage “subject to” the first and second mortgages. When, however, instead of assuming the mortgage the grantee merely takes subject thereto, the rule is different. Fiske v. Tolman, 124 Mass. 254. In the Lappen and Braman cases the promise ran from the actual grantee under the instrument where the provision was found, while in the present case the promise is by “ the grantee for herself, her heirs” evidently referring to a woman, who without doubt was Mrs. Leavitt and not Nussinow.
It is manifest that this provision was inserted before the meeting was held for the passing of papers and at a time when all the parties except Nussinow understood that the mortgage was to run to Mrs. Leavitt. The finding that Nussinow is not bound by the provision in the mortgage relating to the Spruce
Specific performance will not be decreed where the ability to perform by the person against whom the decree runs depends upon the consent of a third person. It was said in Ellis v. Small, 209 Mass. 147, at pages 149, 150, where the plaintiffs sought to have a written lease assigned, “But we think that the covenant not to assign except with the written consent of the lessor, which is wanting, constitutes an insuperable objection to granting the relief sought.” In such circumstances equity will not enforce specific performance. Sears v. Boston, 16 Pick. 357. Milkman v. Ordway, 106 Mass. 232. Wentworth v. Manhattan Market Co. 216 Mass. 374. Seretto v. Schell, 247 Mass. 173. Buckley v. Meer, 251 Mass. 23, 25. Kennedy v. Hazelton, 128 U. S. 667, 671. Burgin v. Sugg, 204 Ala. 270. Pomeroy’s Specific Performance of Contracts, § 295 and cases cited in note.
It is evident from the warrantable findings of the trial judge that the defendant Leavitt is incapable of surrendering the note or discharging the mortgage, and for that reason the bill cannot be maintained against her. In view of this conclusion it is unnecessary to consider her contention that the knowledge of the plaintiffs of her incapacity to perform is a bar to equitable relief. Milkman v. Ordway, supra. Kennedy v. Hazelton, supra. Morss v. Elmendorf, 11 Paige, 277. Nor need we consider her further contention that the plaintiffs, by assenting to the mortgage being made to Nussinow without any arrangement with him that it be subject to the previous agreement, waived their rights under the contract, and are now estopped to compel the defendant Leavitt to perform the agreement. Boyden v. Hill, 198 Mass. 477. See Suburban Land Co. Inc. v. Brown, 237 Mass. 166, 168.
As the bill was rightly dismissed on the merits, it is unnecessary to consider the questions raised by the demurrer.
Order affirmed.
Decree affirmed.