Brown v. Stillman

• Decision Date: 03 April 1890
• Citation: 45 N.W. 2,43 Minn. 126
• Parties: BROWN v STILLMAN.
• Court: Minnesota Supreme Court

43 Minn. 126

45 N.W. 2

BROWNvSTILLMAN.

Supreme Court of Minnesota.

April 3, 1890.

(Syllabus by the Court.)

A. mortgaged a certain lot to B., and then conveyed the same to C., subject to the mortgage, without any assumption clause in the deed. C. thereupon conveyed to D., subject to the same and a second mortgage, by warranty deed, and thereby also expressly agreed to pay and discharge the second mortgage, his grantee assuming the first mortgage. Held, that the land passed to D. charged with the incumbrance of the mortgage made by A., as the primary fund for its payment, but that, C. not being personally liable to pay the same, the covenants in the deed between him and his grantee must be construed as mutual covenants of indemnity, as respects the incumbrances upon the land, and did not make D. personally liable, legally or equitably, to B., the first mortgagee, as principal debtor or otherwise.

Appeal from district court, Hennepin county; REA, Judge.

R. L. Stillman, for appellant.

Woods & Kingman and Edward C. Gale, for respondent.

VANDERBURGH, J.

The plaintiff, on the 1st day of March, 1887, owned the certain town lot described in the complaint, and on that day executed a mortgage thereon to secure a certain negotiable note, with interest. A few days later the plaintiff sold and conveyed the mortgaged premises by warranty deed to one Darrow, subject to the mortgage, and thereafter, in May, 1887, Darrow conveyed the same premises by warranty deed to a corporation known as the “Barber Supply & Exchange Company,” also subject to the mortgage; and, lastly, on the 3d day of September, the Barber Supply & Exchange Company sold and conveyed the same land to the defendant in this action. The mortgage was to run three years, and the first installment of interest became due March 3, 1888, being a negotiable coupon interest note. There were no covenants by the grantees in the deeds to Darrow and the Barber Supply Company, respectively, to assume and pay the mortgage, but each took the land subject thereto. But the deed to the defendant contained the following provision and stipulation in respect to that mortgage, and a second mortgage therein referred to, viz.: “Subject, nevertheless, to two certain mortgages,-one first mortgage, given to secure the payment of the sum of three thousand (3,000) dollars, which said second party [defendant] assumes; and one certain second mortgage, upon which there is remaining unpaid the sum of two thousand five hundred dollars, ($2,500,) which said first party agrees to pay and satisfy on or before the 3d day of March, 1888.”

The first coupon interest note, amounting to $221.94 was paid by the plaintiff as maker of the original note and mortgage, after maturity; and he now brings this action to recover of the defendant the amount so paid, on the ground that, by virtue of the stipulation in the deed above quoted, the defendant became personally and primarily liable to pay the debt secured by the mortgage. To this legal proposition we are unable to give our assent. In construing this clause, and in endeavoring to ascertain the intention of the parties, we must consider their relations to the land...