Coolidge v. Smith

Decision Date22 October 1880
Citation129 Mass. 554
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesAaron R. Coolidge & another v. Eliza A. Smith

Argued March 10, 1880

Suffolk. Contract for breach of an agreement to pay a mortgage existing upon a parcel of land conveyed by the plaintiffs to the defendant. Trial in the Superior Court, without a jury before Pitman, J., who reported the case for the determination of this court, in substance as follows:

On May 18, 1872, the plaintiffs, who owned a large tract of vacant land in Dedham, mortgaged it to Martha. C. Bullard, trustee to secure their note of even date for $ 6000, payable in five years. On March 18, 1876, the plaintiffs made an oral agreement with Timothy H. Smith, the defendant's husband to exchange said land, subject to the mortgage, for an estate owned by Timothy, situated in Boston, also subject to a mortgage. By the direction of Timothy, the deed from the plaintiffs was made to the defendant, and contained the following recital: "Subject to a mortgage of $ 6000, which the grantee hereby agrees to assume and pay, and save the grantors harmless therefrom." The deed was executed, and was delivered by the plaintiffs to Timothy, who had the same recorded on March 22, 1876. In June 1878, the mortgage note to Bullard being unpaid, she caused the land to be sold by auction, under the power contained in the mortgage, and it brought $ 1500, which she indorsed on the note; and, before the commencement of this action, the plaintiffs paid her the balance of the note and interest.

There was also evidence that the defendant went with her husband to the land in Dedham before or after the making of the deed to her; and that, after the date of the deed, she went alone to the mortgagee's house, and paid the interest due May 18, 1876, saying that she had purchased the property and had come to pay the interest on the mortgage.

The evidence of the defendant and her husband tended to contradict so much of the plaintiff's evidence as related to the defendant's statements at the mortgagee's house and the payment of the interest money; and they testified that the defendant did not know the deed was made to her until the commencement of this action. There was also other evidence.

Upon all the evidence in the case, the judge did not find it proved that the defendant ever knew anything about the contract of exchange or contract of purchase of the land in Dedham, or that she had ever previously authorized it, or previously thereto had authorized the conveyance or deed to be made to her, or that she ever saw the deed or copy or record of it, or had any knowledge or notice of it or of its contents or of the implied promise to pay the mortgage, until after the estate had been sold by Mrs. Bullard, when she repudiated it; nor that her husband had express or implied authority to bind her in the premises; but found that, soon after the deed was recorded, the defendant knew that the land in question was conveyed to her; that, from her knowledge and experience in such matters, she must have known that the conveyance was by deed duly recorded; that, thereupon, she claimed to be the owner thereof and, upon these facts, held that he was authorized to find her assent to the purchase, and did so find; and further held that such conduct amounted to a ratification of the act of her husband in purchasing the estate in her name and taking the deed accordingly; and that she was bound thereby by all the agreements in the deed, although she had not examined the same or been informed as to the contents; and thereupon ordered judgment for the plaintiffs for the sum of $ 5507.84. If, upon the facts found, the judge was not authorized, in law, to find ratification and acceptance of the deed so as to make the defendant liable, a new trial was to be had, otherwise, judgment to stand.

After the case was entered in this court, the judge was allowed, on motion of the plaintiff, to amend the report by adding the following statement: "At the hearing, there was evidence tending to show that, on the day the deed from the plaintiffs to the defendant was executed and delivered, and in the same office, one Richardson, at the request of Timothy, assigned to the defendant a mortgage on real estate in Revere, given by Timothy to Richardson to secure his note for $ 20,000 payable to Richardson; that the assignment, after it was executed and delivered to Timothy, was duly recorded; and the defendant testified that, at the time of the trial, she owned said mortgage under the assignment; that, before and after the date of the deed from the plaintiffs to the defendant, and at the time of the trial...

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27 cases
  • Kidder v. Greenman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 11, 1933
    ...contents is charged with knowledge of such contents (see Grace v. Adams, 100 Mass. 505, 507,97 Am. Dec. 117, 1 Am. Rep. 131;Coolidge v. Smith, 129 Mass. 554, 558;Farrell v. Chandler, Gardner & Williams, Inc., 252 Mass. 341, 147 N. E. 822;O'Reilly's Case, 258 Mass. 205, 154 N. E. 851) is not......
  • Clark v. Fisk
    • United States
    • Utah Supreme Court
    • June 14, 1893
    ...Parol evidence was not admissible to show that grantee did not assume payment of mortgage debt. 2 Devlin on Deeds, sec. 1055; Coolidge v. Smith, 129 Mass. 554; Muhlig v. Fiske, 131 Mass. 110; Kellar Ashford, 133 U.S. 610; Blyer v. Manholland, 2 Sandf. Ch. 478. The mistake unaccompanied by f......
  • Citizens Bank of Springfield v. Thomas
    • United States
    • Missouri Court of Appeals
    • July 2, 1924
    ...and repudiate its burdens. Keller v. Ashford, 133 U.S. 610, 33 L.Ed. 667; Ver Planck v. Lee, 19 Wash. 492, 53 P. 724; Coolidge v. Smith, 129 Mass. 554; Halloway Mountain Grove Creamery Co., 286 Mo. 489; Fox v. Windes, 127 Mo. 511, 512; Miller v. Thompson, 34 Mich. 10. It is well established......
  • Dooly Block v. Salt Lake Rapid Transit Co.
    • United States
    • Utah Supreme Court
    • June 5, 1893
    ...7 Utah 68, 24 P. 752; Ullman v. McCormic, 12 Colo. 553, 21 P. 716; Doe v. Vallejo, 29 Cal. 385; Coryell v. Cain, 16 Cal. 567; Coolidge v. Smith, 129 Mass. 554. record reveals no material error committed during the conduct of the trial, and we are of the opinion that the act of the city coun......
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