Muhlig v. Fiske

• Decision Date: 09 April 1881
• Citation: 131 Mass. 110
• Parties: James H. Muhlig v. John E. Fiske
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

131 Mass. 110

James H. Muhlig v. John E. Fiske

Supreme Court of Massachusetts

April 9, 1881

[Syllabus Material]

Middlesex. Contract to recover the sum of $ 375. Writ dated June 30, 1879. The plaintiff in his declaration alleged that he executed and delivered to the defendant, and the defendant accepted, a deed, a copy of which was annexed to the declaration, and that the defendant therein agreed with the plaintiff to pay, assume and save him harmless from a certain mortgage of $ 1500 and the interest to accrue thereon; that such interest from August 14, 1878, to February 14, 1879 amounting to the sum of $ 375, had become due and had not been paid, and that the defendant had not paid the same nor saved the plaintiff harmless therefrom, and owed the plaintiff that sum, with interest from the date of the writ.

By the deed referred to, dated March 1, 1876, the plaintiff, in consideration of the sum of $ 2500 to him paid by the defendant, the receipt of which is acknowledged, conveys to him in fee a lot of land in Natick, with covenants of seisin in fee, good right to sell and convey, freedom from incumbrances, "except a mortgage of $ 1500 to B. L Crocker, dated August 1875, which this grantee assumes and agrees to pay and save the grantor harmless therefrom, the same being a part of the consideration hereof," and warranty "against the lawful claims and demands of all persons, except as aforesaid."

The defendant in his answer denied each and every allegation in the declaration; and alleged that before the suing out of the writ the mortgagee executed the power of sale contained in the mortgage, and paid, cancelled and extinguished the principal and interest secured by the mortgage, thereby discharging the defendant from his alleged obligation in the deed mentioned in the declaration.

At the trial in the Superior Court, before Pitman, J., it appeared that on March 1, 1876, the plaintiff executed the deed to the defendant, mentioned in the declaration; and that this action was brought in the plaintiff's name for the benefit of Crocker, the mortgagee, to recover the amount of interest due on the mortgage at the date of the writ, the principal sum not being due. The deed was produced at the trial by the defendant's attorney, and its execution proved by one Shattuck, a real estate agent, residing in Natick, who wrote as well as witnessed it.

The defendant offered to prove the following facts: "1st. That the contract between the plaintiff and the defendant, in consideration of which said deed was given, was that the plaintiff should convey the equity in said premises to the defendant in exchange for two lots of unincumbered real estate in Natick. 2d. That there was no contract made between the parties whereby the defendant agreed to assume and pay said mortgage. 3d. That the defendant never authorized the insertion of the agreement sued on in said deed. 4th. That he had no knowledge of its being in said deed until a long time after, and not until after he had conveyed said estate himself to one Shea."

The judge ruled that, "there being no suggestion of fraud in the making, execution or delivery of the deed, the evidence offered was inadmissible under the pleadings, except so far as it related to the delivery of the deed and tended to show want of such delivery."

The defendant testified that said deed did not come into his own possession, and was not delivered to him personally, at any time until after he had sold and conveyed said premises to Shea, and that he had no knowledge of the agreement sued on being in the deed to him until the summer of 1878. The plaintiff testified that said deed was, at the time of its acknowledgment, passed and delivered to the defendant, and passed by him to Shattuck, by whom, as both parties agreed, it was taken to be recorded.

The defendant contended, and offered evidence tending to show, that Crocker duly foreclosed the mortgage under the power therein by a sale through said Shattuck, and in accordance with terms authorized by Crocker, to one Clough, and that Crocker afterwards refused to execute and deliver a deed in accordance with the terms of sale. The plaintiff denied that Crocker ever authorized a sale on the terms upon which it was made, or upon any other terms than for cash, and also denied that the terms of the sale, such as they were, had been complied with by the purchaser, and evidence on both these points was offered; but no question was made as to the sale in any other particulars. It appeared that Crocker, after the sale, denied that he had authorized it upon the terms on which it was made, and declined to execute a deed.

The defendant offered evidence tending to show that the terms of sale named at the auction were $ 50 to be paid down in cash and $ 15 per month for two years, and the balance in thirty-eight months from date of sale, all except the $ 50 cash to be secured by mortgage, and that upon these terms the estate was bid off by Clough for $ 1825, a sum sufficient to pay principal,...