Ratner v. Hill

• Decision Date: 30 January 1930
• Citation: 170 N.E. 69,270 Mass. 249
• Parties: RATNER v. HILL. HILL v. RATNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

270 Mass. 249

170 N.E. 69

RATNER

v.HILL.

HILL

v.RATNER.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 30, 1930.

Appeal from Superior Court, Suffolk County; Alonzo R. Weed, Judge.

Suit by Harry Ratner against Melvin F. Hill, and by Melvin F. Hill against Harry Ratner. In both cases the decision was in favor of Hill, and Ratner appeals. Reversed and rendered.Clarence Tichell and Thomas J. Casey, both of Boston, for appellant.

RUGG, C. J.

The parties hereto entered into an agreement in writing and under seal, whereby Hill agreed to sell and Ratner to buy a parcel of land. The agreement contained the following provisions: ‘Said premises are to be conveyed on or before January 25, 1927, by a good and sufficient quitclaim deed, conveying a good and clear title to the same, free from all incumbrances, except a mortgage in the amount of thirty thousand ($30,000) dollars and expiring in or within one year from date of passing papers, and to a lease, copy of which is hereto annexed. * * * The afore-described mortgage of thirty thousand ($30,00) dollars shall contain a provision which will permit the equity owner to demolish the buildings on the premises and to build in place thereof a brick block.’ At the time and place stipulated in the agreement for its performance attorneys representing each party were present. The attorney for Hill tendered a deed purporting to be in full performance of his obligations under the agreement. Accpetance was refused by Ratner because it purported to convey the land subject to a mortgage for $30,000 which bore interest at the rate of six per cent. These cases were submitted to the Superior Court on an ‘agreed statement of facts.’ Therein is this stipulation: ‘It is agreed that the only question before the Court is this question of law, viz.: Whether or not the tender of a deed by Hill, acceptance of which by Ratner would result in said Ratner's acquiring the property subject to a mortgage which required the payment of interest at six (6%) per centum per annum in addition to the payment of the principal, was a sufficient tender under the terms of the agreement in which the only reference to the mortgage contained no statement that the mortgage required payment of interest.’ A finding was made in each case in favor of Hill. Appeals by Ratner bring the cases here.

The agreed statement of facts has been treated, as it is in substance, as a case stated. Frati v. Jannini, 226 Mass. 430, 431, 115 N. E. 746.

The agreement for sale and purchase is in writing. Its true construction is a matter of law. The agreed statement of facts contains no ground for the drawing of inferences of fact. Therefore there is no occasion for the application of G. L. c. 231, § 126.

The contention of Ratner is that the written contract having required that he take a deed free from all encumbrances ‘except a mortgage in the amount of thirty thousand ($30,000) dollars,’ he is not bound to accept a deed whereby the premises were conveyed subject to an interest-bearing mortgage of $30,000. In Shanahan v. Perry, 130 Mass. 460, it was held that a covenant against encumbrances ‘except as aforesaid’ in a deed which recited that the conveyance was made ‘subject to a mortgage deed of thirty-five hundred dollars from’ a stated person and recorded in a stated book and page with Middlesex deeds, was not broken, although it was shown that the mortgage bore interest at seven per cent. which had accrued before the date of the conveyance. It was said that this mention was by way of description and identification of the mortgage ‘which, to the extent of all sums due thereon for principal or interest, is a single incumbrance’ that had been excepted out of the covenant. The statutes require a mortgage to be recorded if it is to be of any effect except between the parties and those with notice of its existence; and purchasers can inform themselves of all its conditions by examining the records. Dawson v. Grote, 222 Mass. 240, 110 N. E. 270. If therefore the mortgage referred to in the agreement in the case at bar was in existence at the time of the execution of the agreement, the purchaser could not rightly object that it bore interest. It was his duty to inform himself with regard to its condition.

If, however, that mortgage was not in existence different considerations prevail. Interest is allowed either as damages for the wrongful retention of money or personal property, or in accord with a contract for its payment. Wood v. Robbins, 11 Mass. 504, 6 Am. Dec. 182;Dodge v. Perkins, 9 Pick. 368;Foote v. Blanchard, 6 Allen, 221, 83 Am. Dec. 624;Goldman v. Worcester, 236 Mass. 319, 128 N. E. 410. In this Commonwealth, from a very early date, a moderate charge for the use of money has been recognized as lawful. The Laws and Liberties of Massachusetts, enacted in 1648, provide under the title ‘Usurie’ ‘that no man shall be adjudged for the mere forbearance of any debt, above eight pounds in the hundred for one year, and not above that rate proportionably for all sums whatsoever, Bills of Exchange excepted, neither shall this be a colour or countenance to allow any usurie amongst us contrary to the Law of God.’ The law imposes a duty to pay interest from the time payment of a principal is due, or from the time of its wrongful detention. Such payment is in its essence damages for failure to pay the principal at the time agreed upon. Dodge v. Perkins, supra; Wood v. Robbins, supra; Goldman v. Worcester, supra; Greenleaf v. Kellogg, 2 Mass. 568;Gibbs v. Bryant, 1 Pick. 118;Union Institution for Savings v. Boston, 129 Mass. 82, 37 Am. Rep. 305;Lamprey v. Mason, 148 Mass. 231, 19 N. E. 350;Burr v. Commonwealth, 212 Mass. 534, 537, 99 N. E. 323. But the law neither imposes nor implies an obligation to pay interest from the moment of the creation of a debt, or of a deposit. Williams v. American Bank, 4 Metc. 317;...