Tyler v. Boyce

• Decision Date: 19 October 1883
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Alonzo Tyler v. Wilman Boyce & another

135 Mass. 558

Alonzo Tyler v. Wilman Boyce & another

Supreme Court of Massachusetts

October 19, 1883

Berkshire. Writ of entry to foreclose a mortgage of land in Lanesborough, made by the tenants, who were husband and wife to Jedediah W. Newton. Plea, nul disseisin, with the specification of defence that the mortgage had been paid and extinguished. Trial in the Superior Court, before Baeon, J who reported the case for the determination of this court, in substance as follows:

No question was made as to the validity of the mortgage. The demandant filed a motion for conditional judgment; and it appeared in evidence that one Oliver Jewett owned the demanded premises at the time of his death, in 1873. He left a will by which he gave all his estate, real and personal, to his wife Rachel, and appointed Newton his executor, who accepted said trust, and, under an order of the Probate Court, sold the demanded premises to Wilman Boyce, one of the tenants, and took therefor his promissory notes for $ 625 secured by a mortgage of the land. Newton always held said notes and mortgage as the property of the estate of Oliver Jewett, although he took the same in his individual name and, after the death of Rachel Jewett, who died testate on October 7, 1879, Newton, who was duly appointed her executor, included said mortgage and notes in the inventory of her estate.

For some time prior to her death, Rachel boarded with Wilman Boyce, and a settlement between him and Newton, acting for Rachel, was made on November 16, 1878, by which the interest on the notes was all paid to July 1, 1878, and the board of Rachel was paid to November 29, 1878. From the lastnamed date until the time of her death Rachel was boarded, cared for, and nursed by Wilman Boyce, and was buried from his residence.

After her death, and during the first two years of his executorship, Newton made efforts to settle with Wilman Boyce for such board, care, and nursing of Rachel, but no settlement was made, nor did said Boyce ever commence an action against him as executor. There was no stipulation in the agreement with Boyce, by which he undertook to board, care for, and nurse Rachel, as to the manner of payment therefor; and the evidence did not disclose any agreement to apply the amount due for such board, care, and nursing to the payment of the notes and mortgage.

Newton, after two years had elapsed from the date of his appointment and giving bond, by order of the Probate Court, sold and assigned the notes and mortgage to the demandant on June 27, 1882, for the purpose of closing the settlement of Rachel's estate. The notes were at that date all overdue.

The demandant asked the judge to rule as follows: "1. Wilman Boyce's neglect to commence and prosecute a suit against Rachel Jewett's executor within the first two years of his executorship, deprived him of the right to set up his claim in this action as a set-off to the amount due upon the mortgage. 2. The claim, under the evidence, cannot, in law, be considered a payment for any sum upon the mortgage. 3. The claim should not, under any consideration of the evidence, be allowed in any manner to diminish the amount due on the mortgage."

The judge gave the second instruction as requested; declined to give the others; and ruled that said claim for board, care, and nursing was of such a nature as to be allowed in this action; and submitted the following question to the jury: "What sum was justly due to Wilman Boyce for the board, care, and nursing, and the funeral expenses of Rachel Jewett, from the date of the settlement to her death and burial?"

The jury returned the following verdict: "The jury find due Wilman Boyce for board, nursing, and care of Rachel Jewett to the...