Prentice v. Brimhall

123 Mass. 291, 1877 Mass. LEXIS 267

Opinion

Gray, C. J.

The defendant, by accepting the deed, made a contract with his grantor to pay the amount of the mortgages upon the land granted ; but the grantor transferred no money or fund to the defendant; and the defendant made no contract with the mortgagees or their assigns, upon which an action at law will lie. Mellen v. Whipple, 1 Gray, 317. Exchange Bank v. Rice, 107 Mass. 37. Pettee v. Peppard, 120 Mass. 522.

In Felch v. Taylor, 13 Pick. 133, and Adams v. Adams, 14 Allen, 65, in which the acceptance of a devise of land, charged with the payment of an annuity or legacy, was held to create an implied promise upon which the annuitant or legatee could maintain an action against the devisee, the defendant had received property out of which to pay the plaintiff’s claim, and had made no contract with any other person, and, at the time of the first of those decisions, there being in this Commonwealth no jurisdiction in equity of such cases, a breach of the defendant’s undertaking could not have been effectually redressed in any other form than that which was sustained by the court.

Judgment affirmed.