Lappen v. Gill

The grantee in a deed, containing a stipulation that the land is subject to a mortgage which he assumes and agrees to pay, is liable to the grantor, who pays the mortgage after failure of the grantee to pay it, although the grantor, when he pays the mortgage, takes an assignment of it; and, in an action for the amount so paid, evidence is inadmissible that, at the time the mortgage was made, the grantor held the land in trust for the grantee and others, and the mortgage was given to take up the defendant's share of a previous mortgage.

Contract for money paid. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions in substance as follows; On July 3, 1876, the plaintiff executed and delivered to the Cambridge Savings Bank a mortgage deed of certain premises in Cambridge, to secure Ms note of $1300, with interest; and, on August 22, 1876, he executed and delivered to the defendant a quitclaim deed of the same premises, containing the following clause: “ This conveyance is subject to a mortgage to the Cambridge Savings Bank for thirteen hundred dollars, with interest, wMch the grantee is to assume and pay, also the taxes of 1876.” The defendant paid interest on the mortgage note due in January and July 1877, and January 1878, and taxes on the premises. The defendant not having paid the mortgage note of $1300, the plaintiff voluntarily paid the same, and, on December 18, 1877, the bank assigned to him the mortgage and the note of $1300 secured thereby. The last payment of interest on the note by the defendant was made to the plaintiff on January 10, 1878. The defendant offered to prove that, at the time the plaintiff made the mortgage deed, the plaintiff held the legal title to the mortgaged premises for the benefit of the defendant and others, heirs at law of the defendant’s father; and that the mortgage was given to take up the defendant’s share of a previous mortgage of said premises given by his father. The judge rejected this evidence as incompetent; and ordered judgment for the plaintiff for $1427.50. The defendant alleged exceptions.