Provident Inst. for Sav. in Town of Boston v. Merrill
| Decision Date | 26 February 1942 |
| Parties | PROVIDENT INST. FOR SAVINGS IN TOWN OF BOSTON v. MERRILL et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Action by the Provident Institution for Savings in the Town of Boston against J. Warren Merrill and another to establish defendant's indebtedness on a note and to reach and apply to satisfaction of such indebtedness codefendant's obligation to defendant Merrill to pay indebtedness in accordance with stipulations in defendant Merrill's deed conveying to codefendant premises covered by a mortgage securing the note. From a final decree, ordering defendant Merrill to pay the balance due on the note, he appeals.
Reversed, and entry of a decree dismissing the bill ordered.Appeal from Superior Court, Suffolk County; Walsh, Judge.
Before FIELD, C. J., and QUA, COX, and RONAN, JJ.
E. C. Thayer and L. P. Jordan, Jr., both of Boston, for plaintiff.
J. W. Huse, F. W. Campbell and F. H. Free, Jr., all of Boston, for defendant J. W. Merrill.
Merrill, on October 25, 1910, gave a note to the plaintiff, hereinafter called the bank, in the sum of $15,000, payable in five years, and secured by a mortgage on premises in Boston owned by him. The note was witnessed by one Sawyer. Merrill conveyed these premises to Bradlee on May 29, 1911, subject to the bank's mortgage, which Bradlee agreed to assume and pay. After making this conveyance, Merrill had no interest in the property and did ‘Nothing whatever’ in connection with the mortgage. He made no payments upon the note, nor any written acknowledgment of the indebtedness, nor any promise to pay it. He did not know what, if anything,was due upon the note until the bank made a demand for payment upon him early in 1941. Bradlee made payments on interest and on principal from the time she became the owner until February 10, 1941. Merrill appealed from a final decree ordering him to pay the balance due on the note, which was entered after a hearing upon a bill of complaint, brought against Merrill to establish an indebtedness against him upon the note and to reach and apply to the satisfaction of this indebtedness the obligation of Bradlee to Merrill to pay this indebtedness in accordance with the provision in the deed conveying the mortgaged premises to her.
The mortgage note matured in 1915, but the bank, the payee, could enforce it at any time thereafter within the period of twenty years, as the note was signed in the presence of an attesting witness. G.L.(Ter.Ed.) c. 260, § 1, Third. Phillips v. Vorenberg, 259 Mass. 46, 156 N.E. 61;Alpert v. Radner, 293 Mass. 109, 199 N.E. 407. The bill of complaint, however, was not filed until March 15, 1941. The bank contends that the payments made by Bradlee tolled the statute of limitations respecting Merrill.
All the payments made after Merrill sold the property were made by Bradlee with her own money to reduce an encumbrance upon her property. The payments were made in her own behalf and for her own benefit. Although they reduced his indebtedness to the bank, Merrill did not participate in them or exercise any control or supervision over Bradlee in reference to them. As between Merrill and herself, she became bound by the deed poll to pay the mortgage note and became the principal debtor and he became a surety. Rice v. Sanders, 152 Mass. 108, 24 N.E. 1079,8 L.R.A. 315, 23 Am.St.Rep. 804;Franklin Savings Bank v. Cochrane, 182 Mass. 586, 66 N.E. 200,61 L.R.A. 760;Lynn Five Cents Savings Bank v. Portnoy, 306 Mass. 436, 28 N.E.2d 418. In this aspect, the situation might be regarded as somewhat analogous to that of the maker and indorsee of a note. It has been recently held that part payments made by the maker, in which the indorser did not participate, would not prevent the operation of the statute of limitations on the liability of the indorser. Credit Service Corp. v. Barker, 308 Mass. 476, 33 N.E.2d 293, and cases cited. The bank could not enforce directly against Bradlee her undertaking with Merrill to pay this note. Bloch v. Budish, 279 Mass. 102, 180 N.E. 729;Silverstein v. Saster, 285 Mass. 453, 189 N.E. 540. Her relationship to the bank was entirely different from that of Merrill. She dealt with the bank on the basis of her ownership of the property. The bank contends that, in making payments on the note, she was acting as agent of Merrill. Of course, a part payment will not take a debt out of the operation of the statute of limitations unless it was made by the person to be charged or his agent. Butler v. Price, 115 Mass. 578;Vaughan v. Mansfield, 229 Mass. 352, 118 N.E. 652. If, by virtue of her promise to pay the note, she was authorized by Merrill to pay it in his behalf, then it would seem that her authority ceased when the note became due, Locke v. Homer, 131 Mass. 93, 41 Am.Rep. 199;Nutter v. Mroczka, 303 Mass. 343, 21 N.E.2d 979, and that she could not bind him by any payments made more than a quarter of a century after maturity. Am.Law Inst. Restatement: Agency, § 105. But upon the evidence it is plain that she was not representing Merrill in making these payments. Roscoe v. Hale, 7 Gray 274;Stoddard v. Doane, 7 Gray 387;Butler v. Price, 115 Mass. 578;Campbell v. Baldwin, 130 Mass. 199. Compare Buffinton v. Chase, 152 Mass. 534, 25 N.E. 977,10 L.R.A. 123;Vermont-People's National Bank v. Parker, 269 Mass. 387, 169 N.E. 154.
The bank relies upon decisions to the effect that a payment by a grantee who has assumed and...
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