Gerber Et Al. v. Berstein

FIELD, Justice. This is an action of contract on an alleged agreement of the defendant to assume and pay certain mortgages on real estate in Lynn. The writ is dated October 29, 1932. The answer is a general denial and payment. Morris Gerber and the Gerber Realty Trust 'by its trustee, Morris Gerber' were originally named as parties plaintiff but the 'action of the co-plaintiff, 'Gerber Realty Trust' was 'waived' in open court leaving Morris Gerber the sole plaintiff. He is referred to herein as the plaintiff. The Judge denied the motion of the defendant for a directed verdict and on motion of the plaintiff directed a verdict for him in the amount of $3,708.25. The defendant excepted. These facts appear to have been undisputed. On May 10, 1929, the plaintiff conveyed the premises by a quitclaim deed to one Kavanagh who, on the same day, by a quitclaim deed, conveyed them to 'Morris Gerber as he is trustee of the Gerber Realty Trust.' Neither deed contained any provision that the grantee assume and pay existing mortgages. A deed, dated July 15, 1929, in the usual short statutory form with warranty covenants (see G.L.[Ter.Ed.] c. 183, § 16), signed by the plaintiff and his wife, who released dower and other interests, wherein the grantors were described as 'Morris Gerber, individually, and as Trustee of the Gerber Realty Trust, under a declaration of trust dated May 10th, 1929, recorded with the Essex South District Registry of Deeds, Book 2805, Page 535 and recorded anew herewith,' conveyed the premises to the defendant who agreed to assume and pay certain existing mortgages. There were three such mortgages. The premises were then subject to a first, a second and a third mortgage, each given to secure a promissory note of the plaintiff. On November 16, 1932, the premises were sold on the foreclosure sale of the first mortgage for the principal amount of such mortgage.