Nesson v. Millen

• Decision Date: 17 May 1910
• Citation: 91 N.E. 995,205 Mass. 515
• Parties: NESSON v. MILLEN (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 515

91 N.E. 995

NESSON v. MILLEN (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1910

COUNSEL

George W. Reed, for plaintiff.

David Stoneman, for defendant.

OPINION

MORTON J.

Each of these two actions is upon a mortgage note payable to the plaintiff or order and indorsed by the defendant before delivery. The actions are against the defendant as indorser and were tried together. The defendant offered to prove that he had entered into a written agreement with the plaintiff for the purchase of the property covered by the mortgages and that the plaintiff was to convey it to him subject to a mortgage of $10,000; that the plaintiff was unable to carry out this agreement by reason of the fact that there was a bank mortgage of $5,000 which he was unable to get discharged; and that he thereupon proposed to the defendant that he (the defendant) should take a deed through a conduit free and clear of all incumbrances, and cause mortgages on the lands conveyed and mortgage notes indorsed by the defendant to be given to him by the conduit, so as to enable the plaintiff to raise money, the plaintiff undertaking to discharge the bank mortgage as soon as he could and not to look to the defendant for payment by reason of his indorsements on the mortgage notes, and representing to the defendant that the indorsements upon the mortgage notes would be for the plaintiff's accommodation. The defendant further offered to show that the transaction was carried out as thus proposed, and that the mortgage notes in suit were given by a conduit and indorsed by the defendant pursuant to the arrangement thus entered into.

The presiding justice excluded the evidence thus offered and directed the jury to return a verdict for the plaintiff. The defendant duly excepted. We think that the evidence should have been admitted.

It is manifest that if the written agreement had been carried out the defendant would have been under no personal liability on account of the mortgage subject to which the premises were to be conveyed to him. He would have been the owner of the equity of redemption, and if the conditions of the mortgage were broken the mortgagee could have foreclosed the mortgage just as he did in the case of the mortgages given to secure the notes in suit. But the defendant would not have been personally liable, as it is contended that he now is, for the difference between the amount realized from the foreclosure sale and the sum which the mortgage was given to secure. And the...