Provident Inst. for Sav. in Town of Boston v. Merrill

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtRONAN
Citation311 Mass. 168,40 N.E.2d 280
Decision Date26 February 1942
PartiesPROVIDENT INST. FOR SAVINGS IN TOWN OF BOSTON v. MERRILL et al.

311 Mass. 168
40 N.E.2d 280

PROVIDENT INST. FOR SAVINGS IN TOWN OF BOSTON
v.
MERRILL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 26, 1942.


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.

[40 N.E.2d 280]

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.

RONAN, Justice.

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,

[40 N.E.2d 281]

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...

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10 practice notes
  • Abele v. Dietz
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 30, 1942
    ...Deming, 304 Mass. 478, 23 N.E.2d 1016;Lariviere v. Lariviere, 304 Mass. 627, 24 N.E.2d 659;Provident Institution for Savings v. Merrill, 311 Mass. 168, 40 N.E.2d 280;Sutherland v. MacLeod, 311 Mass. 295, 41 N.E.2d 9, 139 A.L.R. 1375. The indebtedness, upon the findings of the trial judge, m......
  • Zelby Holdings, Inc. v. Videogenix, Inc., No. 16-P-874
    • United States
    • Appeals Court of Massachusetts
    • August 18, 2017
    ..."support a fair and reasonable inference that the debtor intended to renew his promise of payment." Provident Inst. for Sav. v. Merrill, 311 Mass. 168, 171, 40 N.E.2d 280 (1942). See DiCarlo v. Lattuca, 60 Mass. App. Ct. 344, 349, 802 N.E.2d 121 (2004). See also Day, supra ; Our Lady of the......
  • DiCarlo v. Lattuca, No. 02-P-500.
    • United States
    • Appeals Court of Massachusetts
    • January 15, 2004
    ...and there is nothing upon this record that will warrant such an inference." 60 Mass. App. Ct. 350 Provident Inst. for Sav. v. Merrill, 311 Mass. 168, 171 (1942). See Kelly v. McIntyre, 323 Mass. 313, 315 (1948). Indeed, insofar as the record is concerned, the only evidence regarding the rea......
  • DiCarlo v. Lattuca, No. 02-P-500 (Mass. App. 1/15/2004), No. 02-P-500.
    • United States
    • Appeals Court of Massachusetts
    • January 15, 2004
    ...findings to that effect and there] is nothing upon this record that will warrant such an inference." Provident Inst. for Sav. v. Merrill, 311 Mass. 168, 171 (1942). See Kelly v. McIntyre, 323 Mass. 313, 315 (1948). Indeed, insofar as the record is concerned, the only evidence regarding the ......
  • Request a trial to view additional results
10 cases
  • Abele v. Dietz
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 30, 1942
    ...Deming, 304 Mass. 478, 23 N.E.2d 1016;Lariviere v. Lariviere, 304 Mass. 627, 24 N.E.2d 659;Provident Institution for Savings v. Merrill, 311 Mass. 168, 40 N.E.2d 280;Sutherland v. MacLeod, 311 Mass. 295, 41 N.E.2d 9, 139 A.L.R. 1375. The indebtedness, upon the findings of the trial judge, m......
  • Zelby Holdings, Inc. v. Videogenix, Inc., No. 16-P-874
    • United States
    • Appeals Court of Massachusetts
    • August 18, 2017
    ..."support a fair and reasonable inference that the debtor intended to renew his promise of payment." Provident Inst. for Sav. v. Merrill, 311 Mass. 168, 171, 40 N.E.2d 280 (1942). See DiCarlo v. Lattuca, 60 Mass. App. Ct. 344, 349, 802 N.E.2d 121 (2004). See also Day, supra ; Our Lady of the......
  • DiCarlo v. Lattuca, No. 02-P-500.
    • United States
    • Appeals Court of Massachusetts
    • January 15, 2004
    ...and there is nothing upon this record that will warrant such an inference." 60 Mass. App. Ct. 350 Provident Inst. for Sav. v. Merrill, 311 Mass. 168, 171 (1942). See Kelly v. McIntyre, 323 Mass. 313, 315 (1948). Indeed, insofar as the record is concerned, the only evidence regarding the rea......
  • DiCarlo v. Lattuca, No. 02-P-500 (Mass. App. 1/15/2004), No. 02-P-500.
    • United States
    • Appeals Court of Massachusetts
    • January 15, 2004
    ...findings to that effect and there] is nothing upon this record that will warrant such an inference." Provident Inst. for Sav. v. Merrill, 311 Mass. 168, 171 (1942). See Kelly v. McIntyre, 323 Mass. 313, 315 (1948). Indeed, insofar as the record is concerned, the only evidence regarding the ......
  • Request a trial to view additional results

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