## Facts

- Mr. and Mrs. McRae borrowed money secured by a mortgage on their land.
- The mortgage covered the entire tract, including a portion the McRaes later conveyed away and a portion they retained.
- The McRaes conveyed part of the mortgaged premises to Robert D. Pope by warranty deed that recited the premises were conveyed “subject to” unpaid taxes and “subject to” the existing mortgage; the deed contained no written covenant that Pope assumed or agreed to pay the mortgage debt.
- The McRaes claimed that, as part of the consideration for the conveyance, Pope orally agreed to assume and pay the entire mortgage indebtedness.
- Years later, Pope’s mother, Mabel D. Pope, acquired the mortgage by assignment and became the mortgagee of record.
- After acquiring the mortgage, Mabel executed a partial release removing Pope’s parcel from the mortgage lien and then demanded that the McRaes pay the mortgage balance, threatening foreclosure against the McRaes’ retained parcel.
- The McRaes paid the amount demanded, but Mabel proceeded with foreclosure steps, and the McRaes filed a bill in equity seeking to enjoin foreclosure and to obtain reimbursement from Pope and/or Mabel for the sums paid.
- The Superior Court entered a final decree for the defendants, and the McRaes appealed.

## Issues

1. Whether a deed stating the conveyed premises are “subject to” an existing mortgage, without an express assumption covenant, makes the grantee personally liable for the mortgage debt.
2. Whether the grantors could rely on parol evidence of an alleged oral promise by the grantee to assume and pay the mortgage to impose personal liability inconsistent with the deed’s “subject to” language.
3. Whether, after paying the mortgage to protect their retained land from foreclosure, the grantors could recover reimbursement or obtain equitable relief against the grantee and the assignee-mortgagee, including based on the assignee’s partial release of the grantee’s parcel.

## Decision

- The Supreme Judicial Court affirmed the final decree for the defendants.
- The court held that conveying land “subject to” a mortgage, without more, does not create a personal promise by the grantee to pay the mortgage debt.
- The court concluded the plaintiffs did not establish an enforceable assumption agreement that would shift primary responsibility for the debt to Pope.
- Because no assumption (and thus no surety relationship in favor of the McRaes) was shown, the McRaes’ payment of the mortgage did not give them a right of reimbursement or exoneration from Pope or Mabel on the record presented.
- The court declined to impose liability on the assignee-mortgagee for releasing one parcel and seeking payment from the remaining owners, absent a proved agreement or other basis to restrict the mortgagee’s rights.

## Legal Principles

- A deed that merely states the property is conveyed “subject to” a mortgage generally recognizes the encumbrance on the land but does not, by itself, impose personal liability on the grantee for the mortgage debt.
- Parol evidence cannot be used to convert a “subject to” conveyance into a personal assumption obligation where doing so would contradict the natural meaning of the deed’s written terms.
- Without a proved assumption by the grantee, the original mortgagors remain primarily liable on the mortgage debt, and their payment does not create a right to reimbursement from the grantee on a suretyship theory.
- A mortgagee or assignee may generally enforce the mortgage according to its terms, and a partial release of one parcel does not, without more, create personal liability to another parcel owner who later pays the debt.

## Conclusion

McRae v. Pope holds that a “subject to” clause in a deed does not make the grantee personally responsible for the mortgage, and the grantors could not use an alleged oral assumption to contradict the deed and obtain reimbursement after paying the mortgage; accordingly, the court affirmed a decree for the grantee and the assignee-mortgagee.


McRae v. Pope, 311 Mass. 500, 42 N.E.2d 261 (1942)