Furnas v. Durgin

• Decision Date: 29 February 1876
• Citation: 119 Mass. 500
• Parties: Henry Furnas v. Edmund Durgin
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 500

Henry Furnas v. Edmund Durgin

Supreme Court of Massachusetts

February 29, 1876

Argued November 11, 1875 [Syllabus Material] [Syllabus Material]

Suffolk. Contract in several counts, some for breach of a covenant of warranty in a deed from the defendant to the plaintiff, and others for breach of an agreement to pay mortgages subsisting upon an estate conveyed by the plaintiff to the defendant. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows:

The defendant by his deed dated August 19, 1872, conveyed to the plaintiff in fee simple a parcel of land in West Roxbury, with the following covenants: "And I do hereby, for myself and my heirs, executors and administrators, covenants with the said grantee and his heirs and assigns, that I am lawfully seised in fee simple of the granted premises; that they are free from all incumbrances except a mortgage from M. E. Bowe to F. D. Osgood, for three hundred and fifty dollars and interest; that I have good right to sell and convey the same as aforesaid; and that I will, and my heirs, executors and administrators shall, warrant and defend the same to the said grantee and his heirs and assigns forever, against the lawful claims and demands of all persons."

This deed also contained a release by the defendant's wife of her right of dower and homestead in the usual form.

The breaches of covenants alleged in the declaration were that besides the mortgage mentioned in the deed the land was subject to a mortgage made by Michael E. Bowe, a former owner, to Freeman D. Osgood, for $ 3000, with interest at 8 per cent., payable in one year, dated June 1, 1871, and duly recorded; that this mortgage had been duly assigned to Betsy J. Pope, who had entered upon the land for possession for breach of the condition of the mortgage and to foreclose; and that the plaintiff had thereby lost possession. The plaintiff introduced in evidence the above mentioned deed and mortgage, the assignment of the mortgage by Osgood to Pope, dated July 6, 1871, duly recorded, and a certificate of entry under the statute to foreclose the same, dated December 9, 1872, and duly recorded. It appeared that no payment had been made upon the mortgage from the date thereof to its assignment; also that in March, 1873, the defendant made an offer to the attorney of Pope to redeem the mortgage; but nothing further was shown as to payment or amount due except to reduce the consideration of the assignment, and to reduce the claim made by the plaintiff.

The plaintiff by his deed dated August 19, 1872, duly acknowledged and recorded, conveyed to the defendant a parcel of land in Hyde Park, "subject to mortgages amounting to $ 6500, which the grantee hereby assumes and agrees to pay, and all interest now due on existing mortgages on said property, together with the taxes due on the same." Among these mortgages was one for $ 1500, payable in one year, dated September 1, 1871, duly recorded, made by the plaintiff to George D. Cox, to secure the payment of the plaintiff's promissory note payable to the order of Cox, for the same amount and time, and of the same date. The note and mortgage were assigned by Cox to Joseph P. Paine, by deed of the same date, duly recorded.

The breach of contract alleged in the declaration was the nonpayment of this note and mortgage. They were, with the assignment, put in evidence by the plaintiff.

The only evidence offered as to the payment or non-payment of said note and mortgage was the testimony of Mr. Kittredge, who testified that as attorney at law he called on the defendant in reference to this mortgage within three days after maturity of the note, and that the defendant said he would pay it in a few days, and that he went two or three times after and received the same answer.

The defendant introduced evidence tending to prove that he never gave or delivered the deed of the West Roxbury estate, and that it was obtained from his office by fraud and in his absence, and without his knowledge or consent; also evidence tending to prove that the plaintiff never delivered the deed of the Hyde Park estate to the defendant, and that said deed never was accepted by the defendant, and that the defendant refused to accept the deed with any clause in it whereby the defendant was to assume and pay any mortgages, and that the plaintiff caused said deed to be recorded without the knowledge or consent of the defendant. The plaintiff's testimony was to the contrary on all these points.

The defendant testified that the deed of the West Roxbury estate was signed by Lucretia D. Durgin, his wife, by his own procurement, before the description of the land or any other writing had been made in the deed, and that said Lucretia D. never saw it afterwards, and did not deliver it or redeliver it after said description and other writing had been written in said deed.

It appeared in evidence that the parties had bargained together to exchange the real estate aforesaid in Hyde Park, and an estate in Shawmut Avenue, Boston, both belonging to the plaintiff, for the real estate in West Roxbury, the property of defendant, and the plaintiff introduced the deed of said Shawmut Avenue estate from himself to defendant, dated August 19, 1872, and duly recorded. The plaintiff was allowed, against the objection of the defendant, although it was not alluded to in the declaration, to put in an agreement signed by the defendant, dated August 21, 1872, whereby he agreed to convey to the plaintiff the Shawmut Avenue estate, subject to the mortgages thereon, for $ 1500.

The defendant requested the judge to instruct the jury as follows:

"1. If the jury believe upon all the evidence that Lucretia D. Durgin signed the deed of the estate in West Roxbury before the description of the property and the other written parts thereof were written in, and that there was no redelivery thereof by said Lucretia D., then the conveyance would be void.

"2. If the jury are satisfied upon all the evidence that there was a good and legal delivery of the deed of the West Roxbury estate, and that there has been a breach of the covenants by defendant, then the measure of damages which the plaintiff would be entitled to recover would be the amount he had fairly paid to remove the incumbrance, and if he has paid nothing towards relieving the incumbrances he can recover only nominal damages.

"3. If the jury are satisfied upon all the evidence that there was a good and legal delivery of the deed of the Hyde Park estate to the defendant and accepted by him after knowing its contents, and that the plaintiff is entitled to recover, the measure of damages would be the amount which plaintiff had paid to remove the incumbrance, and if he has paid nothing on said $ 1500, he would be entitled to recover only nominal damages."

The judge refused to give these instructions; but, after appropriate instructions as to what the plaintiff must prove, ruled that the measure of damages for breach of the agreement to assume and pay the mortgage on the Hyde Park estate would be the amount of the note and interest; and that the measure of damages for breach of warranty in reference to the West Roxbury estate would be the amount necessary to redeem the same, namely, the mortgage debt outstanding, including interest.

The jury returned a verdict for the plaintiff, and assessed damages in the sum of $ 2740.30; and the defendant alleged exceptions.

Exceptions overruled.

F. A. Perry, for the defendant.

H. N. Shepard, for the plaintiff.

Devens, J. Endicott & Lord, JJ., absent.

OPINION

Devens, J.

The plaintiff relies, to maintain his action, upon a breach by the defendant of the covenant of general warranty in the deed of the West Roxbury estate of the date of August 19, 1872, -- this estate being at the time of its execution subject to a mortgage originally made to Michael E. Bowe, for the sum of $ 3000, and by intermediate assignments transferred to Betsy J. Pope,--and further upon an eviction by Mrs. Pope, who on December 29, 1872, made an entry upon the premises in order to foreclose the said mortgage.

The certificate of entry produced at the trial is made by the statute evidence of the fact of such entry. Gen. Sts. c. 140, § 2. Oakham v. Rutland, 4 Cush. 172. Thompson v. Kenyon, 100 Mass. 108. There was no other evidence of eviction or of any actual ouster of the plaintiff from the occupancy of the premises, and the defendant contends that this entry was not an eviction which will enable the plaintiff to recover upon his covenant of warranty. But that it is so is settled by the law of this Commonwealth. Tufts v. Adams, 8 Pick. 547.

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