Insolvency, Discharge when a bar. Practice, Civil, Exceptions. One owing $3,500 offered certain land to his creditor which the creditor refused to accept in satisfaction of the debt. The debtor then gave the creditor two mortgages on the land with an instrument declaring that they were "sold absolutely," and later conveyed to the creditor the land itself subject to the mortgages, with an instrument stating that whenever the creditor should sell the land the debtor would pay to the creditor any balance that might remain due on his indebtedness of $3,500 after deducting all sums received by the creditor from the sale of the land. Two years later the debtor obtained a discharge in insolvency. About twenty years later the creditor sold the land for less than the amount of his claim and brought an action for the balance. The debtor set up his discharge in insolvency. Held, that either the land was conveyed as security for the debt, in which case the discharge in insolvency clearly was a bar, or the conveyance was absolute and was to operate as payment of the debt pro tanto by the proceeds of the sale when the land was sold, and that in this case also the discharge was a bar, as the debt although not payable until the land was sold was all the time due and thus provable under Gen. Sts. c. 118, § 25.
After the time allowed for filing exceptions has expired, one who has filed a bill of exceptions may be allowed to amend it by stating more accurately an exception already contained in his bill, but cannot be allowed to add an exception not originally stated.
LORING, J.
We are of opinion that the debt due the plaintiff is barred by the defendant's discharge in insolvency.
If the land was conveyed as security for the debt in spite of the provision in Exhibit A that "said mortgages are sold absolutely by said Williams to Currier," (as some of my brethren think,) the discharge in insolvency is plainly a bar.
If on the other hand (as others of us think) the result of Exhibits A and B was not to make these two parcels of land security for the debt, the discharge in insolvency is still a bar. If it was not by way of security it was a conveyance to Currier by Williams of the fee in these two lots of land, which was absolute and final on the part of Williams and was accepted by Currier in payment for the debt, so far as it went, that is to say, to the amount realized when the two lots were sold. The parties might have provided that the conveyance of the land should be coupled with an agreement by Williams to make the plaintiff good against loss if the land did not realize the amount of the debt. Had they done so, the discharge would not have been a bar. In that case, until the land was sold it would be altogether contingent whether there was a debt or not. In such a case the discharge is not a bar. French v. Morse, 2 Gray, 111. Morton v. Richards, 13 Gray, 15. Deane v. Caldwell, 127 Mass. 242. McDermott v. Hall, 177 Mass. 224. McIntire v. Cottrell, 185 Mass. 178. Harmon v. McDonald, 187 Mass. 578.
But that is just what the plaintiff and the defendant did not do in the case at bar. Currier did not agree to take the land in payment. He introduced evidence that he "declined to accept" the land on those terms. What he did agree to was that he would "give to said Williams credit for the net proceeds of such sale on his aforesaid indebtedness," in the words of the first agreement of Exhibit A. Williams did not agree to pay to Currier such sum as would make the defendant whole in case the land sold for less than the amount of the debt. What Williams did agree to do was to "pay to said Currier any balance that may be due to said Currier on his aforesaid indebtedness, after crediting the net proceeds," in the language of the second agreement of Exhibit A; and, in the language of Exhibit B, that "whenever said Currier shall sell said property, (which said Currier is at liberty to do at any time as aforesaid,) he will pay to said Currier any balance that may remain due on his aforesaid indebtedness of $3500, after deducting all sums received by said Currier from the sale of said property"; and that he "will also pay to said Currier semiannually at the rate of 6 1-2 per cent, the interest on his said indebtedness of $3500."
The effect of these stipulations is that the original indebtedness was to remain due; when the land was sold, the net proceeds were to be credited; and until it was sold the original indebtedness was not payable because the amount paid by the conveyance of the two lots of land had not been ascertained. Until then the debt was due although not payable, and was provable as such under Gen. Sts. c. 118, § 25.
By the terms of the report the rejection of the offer of proof in rebuttal "is only to be considered if the plaintiff is entitled to have his exception heard." A party may be allowed to amend his bill of exceptions to state more accurately an exception stated by him in his bill, within the time allowed for filing a bill, but not to add an exception not originally stated in the bill of exceptions. See Dorr v. Schenck, 187 Mass. 542, where the earlier cases are collected.
We do not intend to intimate that there was anything in the exception in question under St. 1879, c. 245, § 4.
The entry must be
Judgment for the defendant.