Alropa Corp. v. Bloom

• Decision Date: 25 May 1942
• Citation: Alropa Corp. v. Bloom, 311 Mass. 442, 42 N.E.2d 269 (Mass. 1942)
• Court: Supreme Judicial Court of Massachusetts
• Parties: ALROPA CORPORATION v. MIRIAM S. BLOOM & others, executors.

311 Mass. 442

42 N.E.2d 269

ALROPA CORPORATION v. MIRIAM S. BLOOM & others, executors.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1942

February 2, 1942.

Present: FIELD, C.

J., QUA, COX, &amp RONAN, JJ.

Pleading, Civil Declaration.Foreign Law.Mortgage, Of real estate conveyance subject to mortgage.

Upon demurrer in an action of contract by the holder of a note secured by a mortgage of land in Florida against a grantee of the land by a deed poll containing a recital of an assumption by the grantee of the "outstanding obligations on" the property, where the declaration included the allegation "Under the law of Florida the defendant is directly liable to the plaintiff, under the assumption contained in said deed . . . in an action at law as upon a covenant, for the amount of the said mortgage indebtedness," such statement of Florida law was admitted as a fact and it was error to sustain the demurrer.

CONTRACT.Writ in the Superior Court dated November 27, 1939.A demurrer was heard by Greenhalge, J.

J. B. Wolbarsht, (C.

D. Epstein with him,) for the plaintiff.

S. A. Goodman, for the defendants.

COX, J.The defendants' demurrer to the plaintiff's amended declaration (hereinafter referred to as the declaration) was sustained by a judge of the Superior Court on the grounds that the matters contained in it are insufficient in law to enable the plaintiff to maintain its action, and that the declaration does not state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action.The plaintiff excepted.

Material allegations of the declaration are that one Camp conveyed to the defendants' testate William Bloom, hereinafter referred to as Bloom, certain land in the State of Florida; that by the terms of the deed (annexed to the declaration) and, as a part of its consideration, Bloom assumed and agreed to pay "all outstanding obligations on this property consisting of first mortgage amounting to $26,250.00 dated June 8, 1925 and covered by three notes of $8,750.00 each, due June 8, 1926, June 8, 1927 and June 8, 1928 respectively, said mortgage being filed for record . . ."; that, at the time of this conveyance, there was a mortgage on the property dated May 23, 1925, amounting to $20,650, and also a "further" mortgage in the amount of $26,250 dated June 8, 1925, from said Camp to one Smith; that the "identification" in the deed of all outstanding obligations on the property as "consisting of first mortgage amounting to $26,250," was due to an inadvertency and mutual error on the part of Camp and Bloom; that it was their intention that Bloom, by acceptance of the deed, assume a total aggregate mortgage indebtedness of $26,250; that the mortgage, dated June 8, 1925, from Camp to Smith, however, through inadvertence and error, and contrary to the intent of the parties to this mortgage and also of Bloom, stated its principal amount as $26,250, whereas it was the intent of all three parties that this amount be expressed as $5,600, which, when added to the "said existing mortgage" of $20,650, would bring the total aggregate mortgage indebtedness at the time of delivery of the deed to Bloom to $26,250.The declaration further alleges that to correct said "inadvertency and error and to effect the intention aforesaid of the parties," the $26,250 mortgage, at Bloom's request and by his direction, was discharged of record, and a mortgage in the amount of $5,600 was substituted therefor, "as an outstanding obligation on the said property as of the time of the delivery of said deed" by Camp to Bloom, it being the intention of said parties that said Bloom, by acceptance of said deed, assume said mortgages in the respective amounts of $20,650 and $5,600, making a total mortgage indebtedness of $26,250.A copy of this mortgage for $5,600 is annexed to and made a part of the declaration.It is dated May 24, 1925, and acknowledged on August 31, 1925.The declaration and mortgage recite that this mortgage was given as security for the payment of three promissory notes, given by Camp to Smith, each dated May 24, 1925, one in the amount of $1,866.66, and the other two in the amounts of $1,866.67, and due one, two and three years after date, respectively.Further allegations are that the plaintiff is the holder of these three notes which have not been paid.

The declaration somewhat in detail, also alleges that, at the time of the acceptance of the deed by Bloom, it was the common law of Florida, and is now, that where a deed poll contains a clause that the grantee assumes the outstanding obligations on the property conveyed, he is effectually bound by accepting the deed to pay any existing mortgage indebtedness on the said property as though it were an indenture deed between the parties, and that the grantee becomes, as to...