Fiske v. Tolman

• Decision Date: 25 March 1878
• Citation: 124 Mass. 254
• Parties: Eben W. Fiske v. James P. Tolman
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 254

Eben W. Fiske v. James P. Tolman

Supreme Court of Massachusetts

March 25, 1878

Argued November 16, 1877

Suffolk. Contract for breach of an agreement to pay a mortgage existing upon an estate conveyed by the plaintiff to the defendant. Trial in this court, without a jury, before Soule J., who allowed a bill of exceptions in substance as follows:

The plaintiff, by his deed dated July 31, 1872, conveyed to the defendant a parcel of land in Boston. The deed stated the consideration to be $ 11,000, and contained the following clause: "Subject, however, to a mortgage held by the Lowell Five Cents Savings Bank, of $ 7000, which is part of the above-named consideration."

The land originally belonged to George W. Meserve, who on April 15, 1870, mortgaged it to the Lowell Five Cents Savings Bank to secure his note for $ 7000, payable in five years; and subsequently conveyed it, subject to the mortgage, to J. B Moors, who conveyed it to William Somers. The plaintiff, at Meserve's request, bought the premises of Somers, paying the value of the estate above the mortgage, taking a deed which contained the same clause in relation to the mortgage as that in the deed of the plaintiff to the defendant, and agreeing with Meserve to divide the profits resulting from the purchase equally with him.

Meserve then agreed with the defendant to purchase of him a certain other lot of land, and the agreement was performed as follows: The defendant conveyed to Meserve his land, valued at $ 29,500, Meserve giving in part payment his note for $ 20,000, dated July 31, 1872, and payable in two years, secured by mortgage on the land sold by the defendant to Meserve, and the remainder of the payment was made by the plaintiff giving the deed in controversy and a deed of another lot of land. In the exchange, the value of the equity in the first lot was reckoned at $ 4500, and of the second lot at $ 5000. Meserve and the plaintiff agreed to divide equally the profits on the purchase from the defendant. The negotiations were conducted entirely between Meserve and the defendant. The plaintiff did not know, at the time of the conveyance to the defendant, that Meserve was liable as maker of the $ 7000 mortgage note. The defendant had no knowledge as to what arrangements had been made between the plaintiff and Meserve, or that any arrangement had been made between them, either as regards the land conveyed by the defendant to Meserve, or that conveyed by the plaintiff to the defendant.

For about three years after these conveyances, the defendant paid the interest on the $ 7000 mortgage note, but has paid nothing since that time, on account either of the principal or interest. At the maturity of the $ 20,000 note given by Meserve to the defendant, the latter caused the premises to be sold, under the power in the mortgage, in satisfaction of the note. The Lowell Five Cents Savings Bank assigned the $ 7000 note and mortgage, made by Meserve, to Henry B. Williams. Williams assigned the same to Tuttle & Drisko, on January 26, 1874, at the same time indorsing the note. Tuttle & Drisko assigned the same to Hunt & Hyde. The assignees of the note and mortgage demanded payment of the defendant, and, on his refusal, made demand on Williams, the indorser of the note. Williams paid them $ 3500 on account thereof, and they obtained judgment against him for the remainder. Meserve, Moors and the plaintiff assigned to Williams their interest in the covenants contained in the several deeds under which the defendant claims, especially in the alleged agreement of the defendant to pay the mortgage debt.

This action is brought for the benefit of Williams. None of these assignments or agreements, or the fact that suit was brought for the benefit of Williams, were known to the defendant, and the evidence...