Pearson v. Bailey
| Decision Date | 02 January 1901 |
| Parties | PEARSON v. BAILEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Moulton Loring & Loring, for plaintiff.
Arthur F. Means, for defendant.
This is a bill to compel the defendant to pay a mortgage upon his own and the plaintiff's adjoining land to one Marcia Norris the mortgagee. The case is simple. After the mortgage was executed, Elbridge M. Pearson, the mortgagor and owner of the two lots covered by it, conveyed one to the defendant by a deed poll, 'subject to a mortgage, * * * which said Bailey is to assume, it being a part of the above consideration.' At a later day the mortgagor conveyed the other lot by a deed poll which stated that it was subject to the mortgage, but not that the grantee was to assume the mortgage. The last-mentioned lot came by mesne conveyances to the plaintiff, who now seeks to avail herself of the provision in the deed to Bailey.
It is not disputed that Bailey made a simple contract by the acceptance of the deed to him. Locke v. Homer, 131 Mass. 93, 102, 109. But the question is raised what, if any rights the plaintiff gets by reason of that fact, and the coming of the other land to her. Notwithstanding some suggestions in the argument, probably it is unnecessary to say that there is no covenant here, and that the doctrine of covenants running with the land has no application. Martin v. Drinan, 128 Mass. 515. The contract does not purport to be made with the mortgagor as owner of the adjoining land and for its benefit. See Hogan v. Barry, 143 Mass. 538, 10 N.E. 253. It is a purely personal undertaking with a debtor to relieve him of his debt,--to what extent need not be considered now. With certain traditional exceptions, such a promise by a natural person, even if it were a covenant, and much more nearly concerning the landowner as such than this, is not of a kind to pass with land, under the ancient doctrine of the common law. Walsh v. Packard, 165 Mass. 189, 192, 42 N.E 579, 40 L. R. A. 321. Cases like Manufacturing Co. v. Staples, 164 Mass. 319, 41 N.E. 441, 29 L. R. A. 500, where the burden of an obligation to pay part of the damages for flowage was held to be imposed upon the dominant land, as an equitable incident of its easement, or as a counter servitude, binding the land only in favor of other land, are too remote from the present to need discussion.
The benefit of the contract as a contract goes to the plaintiff no more in equity than by the common law. The promise in its entirety does not concern the plaintiff's interests. The only question is whether the plaintiff can get any help from it to relieve her land. Of course, as between the defendant and his grantor, one consequence of the agreement was that the burden of the mortgage was thrown on the defendant's land alone, to the exoneration of the other parcel; and, if Elbridge Pearson had seen fit to convey his land as free from the mortgage, the plaintiff would have taken it free, as against the defendant, not on the ground of succession to the rights of Elbridge Pearson, but...
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