Pettee v. Peppard
| Decision Date | 08 September 1876 |
| Citation | 120 Mass. 522 |
| Parties | Seneca Pettee v. John W. Peppard |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suffolk. Writ of entry to recover a parcel of land in Boston. Plea, nul disseisin. Trial in the Superior Court, before Pitman, J., without a jury, who found for the demandant, and allowed a bill of exceptions, the substance of which appears in the opinion.
Exceptions sustained.
A. A Ranney & D. F. Crane, for the tenant.
W. F Slocum, for the demandant.
OPINION
The demandant claimed the demanded premises by levy on execution against one Appleton. The land was attached on the writ against him on June 28, 1871, and the demandant's title related back to that date.
The premises were originally subject to a mortgage, and had been conveyed by Blanchard to Appleton by deed containing a recital that the land was subject to this mortgage of the grantor, which the grantee, in part consideration for the deed, was to assume and pay "as his own debt," and save the grantor harmless and indemnified therefrom.
On June 27, 1871, Appleton was appointed executor of the will of Elizabeth Batterman, the owner of the mortgage at the time of her death. In the inventory returned by him he included this mortgage as among the assets of the estate, and in his final account charged himself with the full amount of the inventory. After the demandant's attachment of the premises, Appleton, as executor, entered upon the land for breach of condition and assigned the mortgage to the tenant in this action, who offered evidence to prove that he paid full value for it, and that the proceeds were used by the executor to pay legacies.
The case was tried without a jury, and the court ruled, as matter of law upon these facts, that the mortgage was paid and discharged. The demandant contends that the acceptance of the deed above stated made Appleton responsible for the payment of the mortgage; Pike v. Brown, 7 Cush. 133; and that his subsequent appointment as executor, with the inventory and account rendered by him, operated as a payment of the mortgage. He seeks to apply the familiar rule which charges an executor or administrator with all debts due from him to the testator or intestate at the time of his appointment. Ipswich Manuf. Co. v. Story, 5 Met. 310, 313. Chenery v. Davis, 16 Gray 89. Leland v. Felton, 1 Allen 531. Hazelton v. Valentine, 113 Mass. 472. Commonwealth v. Gould, 118 Mass. 300.
But this case does not come within that rule. In the cases cited the debt was directly due to the testator or the intestate from the executor or administrator; the same hand was required both to pay and to receive the money; a suit to recover it would make the same person both plaintiff and defendant. Here there was no debt at any time existing from Appleton to ...
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