Davis v. Thompson
Massachusetts Supreme Judicial Court
Writ op entry, dated February 27, 1871, by the administratrix of Amasa Davis,, to foreclose a mortgage of land in Palmer.
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Writ op entry, dated February 27, 1871, by the administratrix of Amasa Davis,, to foreclose a mortgage of land in Palmer. Plea, nul disseisin, with a specification of defence that the conditions of the mortgage had been fully performed; that the demandant’s intestate made a promissory note for §1100, with interest, dated January 16,1860, payable on demand to Joseph Thompson or bearer, of which the tenant became bearer, and which the demandant’s intestate agreed should be applied in pavment of the mortgage debt, and that the demandant was indebted to the tenant for certain items of account for…
1Opinion of the CourtWells, J.
The court below has found that it was agreed by the demandant’s intestate that his note, held by the tenant, as well as the tenant’s account against him, should be applied towards payment of the mortgage debt. This finding of fact is final. The only question here is one of law; to wit, whether such an agreement can be made effectual in a suit to foreclose the mortgage.
The agreement is executory, it is true, and does not work an absolute payment and discharge, pro tanto, of the debt. Cary v. Bancroft, 14 Pick. 315. Sherer v. Collins, 106 Mass. 417. But it may be treated in equity as payment,…
2Cases cited1 opinion
- Sherer v. CollinsMassachusetts Supreme Judicial Court · 1871
3Cited by2 opinions
- Hood v. AdamsMassachusetts Supreme Judicial Court · 1878
- Lane v. Volunteer Co-operative BankMassachusetts Supreme Judicial Court · 1940