135 Mass. 558 | Mass. | 1883
It would seem from the fact that the mortgage notes were the proceeds of land devised to Rachel Jewett and sold by Newton, the payee, that Newton must always have held them subject to a trust in Rachel’s favor, and therefore subject from the beginning to a set-off of Rachel’s debt to the maker, according to the Massachusetts statutes and decisions. Pub. Sts. c. 168, § 11. Sargent v. Southgate, 5 Pick. 312. Ranger v. Cary, 1 Met. 369. And, however this may be, we are content to assume, for the purposes of this case, that, as the notes were overdue when assigned by Newton to the demandant, the tenants may avail themselves of any set-off which would then have been good against Newton as Rachel Jewett’s executor, in which capacity Newton last held and assigned them, although he originally took them in a different one. Bond v. Fitzpatrick, 4 Gray, 89. Baxter v. Little, 6 Met. 7.
But, even upon this assumption, we think that the demandant is entitled to the whole amount of the notes. The tenants’ nlaim for Rachel Jewett’s board could not have been set off against her executor if he had sued upon the notes instead of assigning them, because the tenants’ claim was already barred
As the only ground on which the tenants could set off the debt due from Rachel, even if not barred, in a suit by the demandant, must be that the action stands on the same footing as if brought by her executor, the tenants must take the burden of that position with the benefit. They cannot have the set-off as if the executor were plaintiff, and avoid the defences because the executor is not plaintiff.
The view argued for by the- tenants regards the law which allows debts to be set off as if it brought them into an account current with debts on the other side, so that the several items extinguished each other pro tanto as fast as they accrued. But this is not the effect of the statute, and it expressly appears that there was no agreement to that effect. The statute simply gives a defendant leave, if he chooses, to consolidate his independent action with that of the plaintiff, subject to substantially the same defences as if it had been brought separately.
Judgment conditional upon the tenants paying $625, with interest to date of judgment.
