Lappen v. Gill

• Decision Date: 10 September 1880
• Citation: 129 Mass. 349
• Parties: Owen Lappen v. Joseph H. Gill
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 349

Owen Lappen v. Joseph H. Gill

Supreme Court of Massachusetts

September 10, 1880

Suffolk. Contract for money paid. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions in substance as follows:

On July 3, 1876, the plaintiff executed and delivered to the Cambridge Savings Bank a mortgage deed of certain premises in Cambridge, to secure his note of $ 1300, with interest; and on August 22, 1876, he executed and delivered to the defendant a quitclaim deed of the same premises, containing the following clause: "This conveyance is subject to a mortgage to the Cambridge Savings Bank for thirteen hundred dollars, with interest, which the grantee is to assume and pay, also the taxes of 1876." The defendant paid interest on the mortgage note due in January and July 1877 and January 1878, and taxes on the premises. The defendant not having paid the mortgage note of $ 1300, the plaintiff voluntarily paid the same, and, on December 18, 1877, the bank assigned to him the mortgage and the note of $ 1300 secured thereby. The last payment of interest on the note by the defendant was made to the plaintiff on January 10, 1878.

The defendant offered to prove that, at the time the plaintiff made the mortgage deed, the plaintiff held the legal title to the mortgaged premises for the benefit of the defendant and others, heirs at law of the defendant's father; and that the mortgage was given to take up the defendant's share of a previous mortgage of said premises given by his father.

The judge rejected this evidence as incompetent; and ordered judgment for the plaintiff for $ 1427.50. The defendant alleged exceptions.

Exceptions overruled.

D. L. Withington, for the defendant.

C. F. Donnelly, for the plaintiff, submitted the case without argument.

Ames, J. Endicott & Soule, JJ., absent.

OPINION

Ames, J.

It has been repeatedly decided that, if a grantee takes a deed containing a stipulation that the land is subject to a mortgage which he assumes or agrees to pay, a duty is imposed upon him by the acceptance of the deed, and the law implies a promise to perform it, on which promise, in case of breach assumpsit will lie. Fiske v. Tolman, 124 Mass. 254, and the cases there cited. This defendant accepted such a deed, and has failed to pay the mortgage which he thereby assumed and agreed to pay. The plaintiff thereupon paid the mortgage debt, and...