Merriam v. Leonard ( 1850 )

Shaw, C. J.

The court are inclined to think, that the appeal was seasonably taken, it being within thirty days after the final report of the commissioners.

Upon the other point, the court are of opinion, that the mortgage, never having been delivered, did not amount to the giving of collateral security, or payment of part, so as to take the debt out of the statute of limitations. Neither did it amount to an acknowledgment of the present existence of any debt, or of a willingness or intention to pay, from which a promise could be implied. Rev. Sts. c. 120, § 13. The deed was never delivered, and of course was not an instrument by which the signer was bound. Maynard v. Maynard, 10 Mass. 456. Keeping it in his own possession until his death shows, that it the debtor had ever any purpose" of delivering it, that purpose was never accomplished.

The ease of Balch v. Onion, 4 Cush. 559, decided last year in Norfolk, affords no authority for the appellant. In that case the deed was duly executed and delivered, and was made to secure the particular note. Besides, that was a suit for the land, and not on the promise, and there was no question on the statute of limitations.

Exceptions overruled.