252 Mass. 168 | Mass. | 1925
This is a suit in equity to establish what is termed an equitable lien, upon the proceeds of a fire insurance policy covering a house and garage on real estate owned by the defendant, subject to a mortgage to the plaintiff. The case is before this court on a report by a judge of the Superior Court.
The facts as found by the judge are substantially as follows : The plaintiff was formerly the owner of the buildings insured and the parcel of land on which they stood. By deed dated September 5, 1919, he conveyed the real estate to one Stedman and at the same time received a mortgage thereon for $1,500 containing the usual covenants, including one on the part of the mortgagor to keep the buildings insured against fire in the sum of $1,500. During the same year the mortgagor conveyed the equity of redemption to one Milauskas, and the latter, on August 25, 1921, conveyed
It is plain from the foregoing findings that the defendant had procured a policy of insurance in the name of Chesnul
The question, then, is: Has the plaintiff an equitable lien on the amount due under the policy arising from the fire, by reason of the promise of the defendant to have the policy made payable to the plaintiff as mortgagee in case of loss? To enforce that promise, it must appear that it was made upon a sufficient consideration. So far as appears from the record, the promise was made without any consideration whatever. Although the mortgage debt was overdue and the last interest payment was in default at the time the promise was made, and it was paid under threat by the plaintiff of foreclosure proceedings, yet it does not appear either expressly or by implication that the plaintiff agreed to allow the defendant further time for payment of the amount due. There is nothing to show that there was any reference to an extension of time for payment or that such extension was in the mind of either party. The record fails to show that the plaintiff promised to forbear foreclosure. He is bound to show a valid consideration for the agreement of the defendant. Mere forbearance without an agreement to that effect is not sufficient consideration for the promise to pay the debt of another, although the forbearance was induced by the promise. Mecorney v. Stanley, 8 Cush. 85. An agreement,
The decision in the case of Providence County Bank v. Benson, 24 Pick. 204, is plainly distinguishable in its facts from those in the case at bar. In that case there was an express agreement that insurance for the benefit of the owner would be obtained by a manufacturer upon wool delivered to his mill. The insurance was obtained in the name of the manufacturer but with the intention of performing the agreement. It was held that the owner had an equitable interest in the policy and that after loss by fire he could hold the avails against an attaching creditor of the person in whose name the policy was issued; and that the agreement to insure was a part of the original written contract between the parties for the sale of the wool. Stearns v. Quincy Mutual Fire Ins. Co. 124 Mass. 61.
The final decree dismissing the bill is to be modified by embodying therein the amount of costs which the defendant is entitled to recover, and as so modified is affirmed.
Ordered accordingly.