Goodenough v. Labrie

• Decision Date: 27 October 1910
• Citation: 92 N.E. 807,206 Mass. 599
• Parties: GOODENOUGH v. LABRIE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 599

92 N.E. 807

GOODENOUGH v. LABRIE et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 27, 1910

COUNSEL

H. A. Buzzell, C. S. Ballard, and C.J. Weston, for appellant.

W. R Heady, for appellees.

OPINION

KNOWLTON C.J.

The plaintiff is the holder of a mortgage upon real estate and the male defendant is the owner of the equity of redemption. This defendant's title is derived under a series of quitclaim deeds, each reciting the existence of this mortgage, and the later ones containing a recital that the grantee assumes and agrees to pay the mortgage as a part of the purchase price. The first of them, that made by the mortgagor to the first grantee of the equity of redemption merely states the existence of the mortgage, without anything in regard to the assumption or payment of it. Both the plaintiff and this defendant supposed that this was the first and only mortgage on the property until after the plaintiff had begun proceedings to foreclose it, when it was discovered that there was a prior mortgage duly recorded upon which about $600 was due, and that there were sundry other serious defects in the title. On account of the existence of the prior mortgage, the plaintiff discontinued the proceedings for foreclosure, to see what could be done in reference to the title. The defendant took measures to perfect the title except as to these mortgages, and he procured an assignment of the first mortgage to be made to his daughter, the other defendant, for a consideration furnished by him. He must, therefore, be treated as the owner of the first mortgage. The plaintiff brings this bill, asking that the assignment to the daughter be treated as a discharge of the first mortgage and that she be enjoined from selling, assigning, transferring or foreclosing the mortgage.

From the statement of agreed facts and the inferences drawn from them the judge rightly found that, after the discontinuance of the proceedings to foreclose, each party was free to proceed in the way which seemed to him best to protect his own interests. In connection with these proceedings and the discontinuance of them nothing occurred that affected the rights of the defendants in regard to the first mortgage.

The only question in the case is whether the implied agreement of the first defendant with his grantor to assume and pay the plaintiff's mortgage, founded on the recital in the deed precludes him from buying and holding the first mortgage. This agreement was not with the plaintiff, and the plaintiff cannot bring an action at law to enforce it. Coffin v. Adams, 131 Mass. 133; Borden v. Boardman, 157 Mass. 410-412, 32 N.E. 469, and cases cited. It was not a covenant. The acceptance of the deed merely created an implied contract of the defendant, upon which the grantor can sue in assumpsit to recover any damages which he suffers from the breach of it. But this grantor was under no liability on account of the mortgage, except that founded upon a similar implied contract with his grantor;...