Felch v. Taylor

Per Curiam. The first question to be considered is, whether Daniel Newhall became alone answerable for this annuity. There are several cases which show, that by ac cepting the devise, he assumed the obligation to pay the annuity, and that the annuitants' might elect to look to him alone for the payment; and the evidence proves that they made such election. It is not necessary to decide whether the effect of this was to charge the land. On the more general principle, that money paid to A for the use of B, may be recovered in an action by B, Mrs. Felch had a right of action against Daniel Newhall. In Arnold v. Lyman, 17 Mass. R. 400, the Court proceeded upon the ground, that although in such a case the actual party to whom the promise was made, might maintain an action upon it, yet that an action might also be maintained by the person who was to be benefited. In the case of Dutton v. Poole, 2 Lev. 210, T. Jon. 102, and 1 Ventr. 318, 332, where a father was about to cut wood to raise a portion for a daughter, but suffered it to stand in consequence of a promise made to him by the heir to pay the portion, the daughter was allowed to recover against the heir. In Goodwin v. Gilbert, 9 Mass. R.. 510, land had been conveyed by deed poll, with a reservation of duties to be performed by the grantee for the benefit of the grantor ; and it was held that the grantor might maintain assumpsit against the grantee for non-performance. It was objected there, that the plaintiffs should have declared on the deed ; but the Court said, that as there was no covenant on the part of the grantee, the promise was implied, and assumpsit might be maintained. It was also objected that the promise was within the statute of frauds, there being no memorandum in writing signed by the grantee; but the [137] court said, that where the law raises the promise, it is not within the statute. This principle is applicable to the present case. The devisor in effect says, I devise certain estate to my =on Daniel, he paying, or on condition that he pays to Farnsworth and his wife, what I am under obligation to pay them, that is, the annuities. By accepting the devise he tacitly consents to comply with the condition, by paying the annuities, he becomes legally liable to pay them, and the law raises a promise by implication in favor of such party, to whom the annuity was payable. The defendant argues, that the testator could not intend to create a debt against his son Daniel in this manner, as the annuitants had a claim against his whole estate. But a sufficient reason may be assigned for such provision. He probably did not choose to have the claim stand against the whole estate, and thus prevent a distribution ; he, therefore, -singled out one parcel of land, which he gave, on condition that the devisee should satisfy this claim, and the devisee, by accepting the devise, became answerable accordingly. It was in the election of Nathaniel Farnsworth and his wife to resort to Daniel Newhall, or to come against the estate as general creditors ; and there was a good reason for their preferring the former course, since in the latter they might have been obliged to sue every year for tire annuity, or have lost it. It is objected, that every creditor of the testator might come in and claim as a legatee against Daniel. Be it so. This provision in the will would affect only those creditors who should accept it; and if Daniel should accept the devise, he would be liable to pay all the debts of the devisor, and there seems to be no good reason why the creditors should not resort to him for payment of their demands. Taking for granted that Daniel, by accepting the devise, assumed the obligation to pay the annuity, and that the annuitants elected to look to him, the question is, whether the charge was transferred to the defendant. And on this point the devise is immaterial, except by way of reference, for the purpose of showing what the nature and extent of Daniel’s [138] own obligation was, because the deed itself under which the defendant took, creates the charge on him. The estate having become absolute by foreclosure, it may be regarded as if it had originally been absolute, and the defendant is to be considered as having taken the fee under an absolute deed containing the clause, “ excepting same condition as set forth in my father’s will.” Merrick contended, that the defendant’s liability commenced when he took the mortgage ; Groton v. Boxborough, 6 Mass. R. 50; Goodwin v. Richardson, 11 Mass. R. 469; that being personal, it was not determined by his conveyance to Gardner ; and that in this action he was answerable for all the sums remaining due at the date of the writ, with interest from the times when they became respectively payable. Dodge v. Perkins, 9 Pick, 368. Hoar and C. Allen, contra, said that the defendant was-chargeable only in consequence of his being tenant of the land, and that his liability commenced on March 9, 1825, when he entered into possession, and terminated when he conveyed to Gardner. Astor v. Miller, 2 Paige, 68 ; Morris v. Mowalt, ibid. 586 ; Swasey v. Little, 7 Pick. 296. The testator makes use of the word contract, in the singular number, but it is to be construed as embracing the two annuities, both standing upon the same ground. The clause in the deed, “excepting same condition as set forth in my father’s will,” is not very technical, but the sense, we think, is obvious. The grantor means that the land is granted under die same condition, under which it was devised to him by his father’s will. If he took subject to the payment of the annuity, the defendant took in like manner, and became liable to pay the plaintiffs, upon which liability the law raises a similar implied promise to the plaintiffs, if they elect to avail themselves of it, and the plaintiffs show their election to hold him responsible for the annuity, by demanding payment of him in this action. Defendant defaulted. The case came again before the Court, upon the question of damages. [139] Per Curiam. A mortgage is to be regarded, to many purposes, as a pledge and security, until the mortgagee enters into possession, and except as between the mortgager and mortgagee, the mortgager is considered the owner. Before entry the mortgagee has not the beneficial use of the land, and without that we think the law will not imply a promise on his part to perform a condition of this sort. The opinion delivered in this case last year, proceeded upon the ground of a personal liability of the party who took the land subject - to the condition of paying the annuity. Such liability was not discharged by his alienation of the estate. The defendant, therefore, must be adjudged to pay such portion of the annuity as accrued after his entry upon the land and before the commencement of the action, with interest from the date of the writ.