Jager v. Vollinger

• Decision Date: 28 November 1899
• Parties: JAGER v. VOLLINGER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 521

55 N.E. 458

JAGER v. VOLLINGER.

Supreme Judicial Court of Massachusetts, Hampshire.

November 28, 1899

COUNSEL

W. G. Bassett and J. W. Mason, for plaintiff.

Chas N. Clark, for defendant.

OPINION

HOLMES C.J.

This is a bill in equity to restrain a continuing trespass. The only issue is on the question of title, and that is brought before us by report. Both parties derive title from one Ballou. In 1860, Ballou mortgaged the land in question which was in Hatfield, and also two lots in Northampton, to the trustees of the Smith Charities. In 1865 he conveyed the Northampton land to one Halloran by a deed containing this clause: 'Subject to a mortgage claim of fourteen hundred dollars to the trustees of the Smith Charities, the payment of which claim is a part of the consideration named.' In 1871, Ballou conveyed the Hatfield land by warranty deed making no mention of the mortgage, and this land came by subsequent conveyances to the plaintiff. All the above-mentioned deeds were duly recorded. For more than 20 years the plaintiff and her predecessors in title have held their land, claiming title, and with no knowledge of the mortgage, and up to April, 1893, Halloran and his successors in title to the Northampton lands paid the mortgage interest. On July 6, 1893, the mortgagees entered upon one of the Northampton lots to foreclose, and recorded a certificate of entry, and thereupon made a lease of the land covered by the mortgage to one Fernald, then the owner of the Northampton land, for a sum equal to the interest on the mortgage and taxes. In May, 1896, Fernald conveyed to the defendant by a deed containing a clause like that in the original deed to Halloran. On July 6, 1896, the mortgagees quitclaimed all the mortgaged land to the defendant in consideration of a new bond secured by a mortgage of the same three tracts.

We are of opinion that the words in the Halloran deed imported an undertaking by Halloran to pay the mortgage. If they had been only 'subject to a mortgage,' etc., 'which is part of the consideration,' they would not have had that effect. Fiske v. Tolman, 124 Mass. 254; Belmont v. Coman, 22 N.Y. 438. But here not the mortgage, but the payment of the mortgage, is a part of the consideration. This means a payment by the grantee, and sufficiently expresses the assumption of the burden by him. Carley v. Fox, 38 Mich. 387, 389; Tichenor v. Dodd, 4 N. J. Eq. 454; Stebbins v. Hall, 29 Barb. 524, 529; Moore's Appeal, 88 Pa. St. 450, 452. See Locke v. Homer, 131 Mass. 93, 106. And as to the effect of the payment of interest by Halloran and his successors, without more, see Pike v. Goodnow, 12 Allen, 472, 475, 476. The effect of the agreement thus made by Halloran by accepting the deed to him was to throw the burden of the mortgage upon the Northampton land as between him and Ballou. Bradley v. George, 2 Allen, 392. As the deed was recorded, his successors in title took subject to the same equitable burden. George v. Wood, 9 Allen, 80, 82, 11 Allen, 41, 42. The successors to Ballou's title in the Hatfield land under his warranty deed in like manner succeeded to the benefit of the agreement Welch v. Beers, 8 Allen, 151. See, further, Pike v. Goodnow, 12 Allen, 472; Baring v. Moore, 4 Paige, 166, 168; Bowne v. Lynde, 91 N.Y. 92; Johnson v. Walter, 60 Iowa, 315, 14 N.W. 325; Miller v. Fasler, 42 Minn. 366, 44 N.W. 256.

Such was the relation between the present parties, at least while the mortgage remained in force, and such, therefore, was their relation on July 6, 1896. On that day the foreclosure was not complete, it being settled in favor of the mortgagor that the day of the entry to foreclose is to be excluded from the statutory three years, while the mortgagee is not given the corresponding benefit with regard to the last day. Fuller v. Russell, 6 Gray, 128. See Bemis v Leonard, 118 Mass. 502, 507; Walker v. Insurance Co., 167 Mass. 188, 45 N.E. 89. In some cases where the law is more strenuous to uphold a transaction a different rule prevails. Stewart v. Griswold, 134 Mass. 391. But, apart from the slightly greater or less favor with which a matter may be regarded, the main thing, as often has been said, is to have the law settled, and we have no disposition to disturb it. This being so, it is unnecessary to consider whether the payment of the so-called 'rent' by Fernald and the defendant under the lease...