Brownson v. Hannah

• Decision Date: 11 February 1927
• Citation: 111 So. 731,93 Fla. 223
• Parties: BROWNSON v. HANNAH.
• Court: Florida Supreme Court

111 So. 731

93 Fla. 223

BROWNSON v. HANNAH.

Florida Supreme Court

February 11, 1927

En Banc.

Error to Court of Record, Escambia County; C. Moreno Jones, Judge.

Action by M. E. Hannah against W. P. Brownson. Judgment for plaintiff, and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Grantee sued by grantor for failure to pay mortgage indebtedness assumed in deed, may not set up statute. The plea of the statute of frauds, that is, the promise to pay the debt of another, such promise not being made in writing, is not applicable to a case where the defendant has accepted a deed a part of the consideration for which said deed is the assumption by the grantee of a mortgage indebtedness mentioned in said deed by a clause stating that the grantee assumes the same, since, if the acceptance of the deed containing such clause or covenant may be considered as any promise at all on the part of the defendant, it is a promise to pay a debt which he thereby makes his own, as a part of the consideration for the deed.

On failure of plea or declaration to show debt was one of simple contract not accruing within five years, plea of statute of limitations was not applicable. The plea of the statute of limitations is not applicable to this case for the reasons hereinafter set forth; it not appearing either by the plea or the declaration that the debt was one of simple contract, not accruing within five years.

Grantee assuming mortgage on property, becomes, as between himself and grantor, primary obligor. By the assumption by the grantee in a deed of a mortgage indebtedness, the grantee thereby becomes, at least as between himself and the grantor the primary obligor for the debt.

Grantee knowingly accepting deed poll, assuming specified mortgage, is as effectually bound thereby as though it were indenture deed inter partes. Where a grantee in a deed poll knowingly accepts a deed in which the consideration is expressed as a certain amount, and 'other valuable considerations,' and such deed contains a clause that the grantee assumes the payment of a specified mortgage debt upon the land conveyed, he is as effectually bound by said deed as though it was an indenture deed inter partes.

Five-year limitation does not apply to suit on liability for mortgage debt evidenced by acceptance of deed poll, by which grantee assumes mortgage. A plea of the statute of limitations that the debt sued upon did not accrue within five years is not applicable to a suit based upon the liability of the defendant for a mortgage debt, as evidenced by the acceptance of a deed poll, knowing that such deed contained a clause that the grantee assumes such specified mortgage debt upon the land.

COUNSEL

William Fisher, of Pensacola, for plaintiff in error.

Jerry J. Sullivan, Jr., of Pensacola, for defendant in error.

OPINION

KOONCE Circuit Judge.

The defendant in error, as plaintiff in the court below, sued the plaintiff in error, as defendant below, in a common-law action, in his declaration alleging the defendant to be indebted to the plaintiff in a certain sum, in that the defendant on a day named became the grantee in a warranty deed from the plaintiff to the defendant, said deed being under seal, that, by the acceptance of the said warranty deed from the plaintiff to the defendant, he (the defendant) thereby obligated himself to pay a certain mortgage debt then owing by the plaintiff to a certain named party, which obligation on the part of the defendant (grantee in said deed) was a part of the consideration for said deed; that the defendant failed and refused to pay the said mortgage debt (which debt was evidenced by a certain note); and that the payee of said note forced the plaintiff to pay the same, and he (the plaintiff) became possessed of and the owner of said note. Copies of the deed and the note were attached as exhibits with proper reference.

Demurrer was interposed to the declaration, which was overruled. Thereafter the defendant filed several pleas, which were each demurred to by the plaintiff, and the demurrers sustained by the court. Upon the defendant declining to plead further, default was entered of record against him, and it was further ordered that the case be referred to a jury, and, upon the verdict of the jury finding for the plaintiff and assessing the damages, judgment was rendered against the defendant.

The defendant below brings the case to this court by writ of error, with five assignments.

The fifth assignment of error is not supported by the record as shown by the transcript, since it appears that a default was regularly entered against the defendant after he had declined to plead further; that a jury returned a verdict; and judgment was rendered upon such default and verdict of the jury.

The second, third, and fourth assignments may all be considered together, since the real question presented by each assignment is whether or not the acceptance by the defendant from the plaintiff or the warranty deed containing a covenant to pay the mortgage indebtedness, and the failure to so pay it, would authorize this suit.

The plea of the statute of frauds, that is, the promise to pay the debt of another, such promise not being made in writing, is not applicable to a case where the defendant has accepted a deed, a part of the consideration for said deed being the assuming by the grantee a mortgage indebtedness mentioned in said deed by a clause stating that the grantee assumes the same, since, if the acceptance of the deed containing such a clause or covenant may be considered as any promise at all on the part of the defendant, it is a promise to pay a debt which he thereby makes his own as a part of the consideration for the deed.

The plea of the statute of limitation is not applicable to this case for the reasons hereinafter set forth; it not appearing either by the plea or the declaration that the debt was one of simple contract not accruing within five years.

The gravamen of this case lies in the acceptance by the defendant of the deed knowing at the time that it contained a covenant that the grantee assumed the mortgage debt which is the basis of this action, and the question presented is whether or not such acceptance is equivalent to a promise under seal. It does not appear that this court has heretofore been called upon to decide this identical question, and therefore this opinion must be based upon the logical effect and the holdings of other courts of last resort.

The burden of the argument of the plaintiff in error is that the deed relied upon to fix liability is a 'deed poll,' that is, a deed which is signed only by the grantor, and which it was never intended should be signed by the grantee, and that therefore it is at most only evidence of a simple contract on the part of the grantee to pay the debt of the grantor. It must be conceded that the argument is not without logic, nor is it without support of authorities. In the brief of the plaintiff in error much stress is laid upon the distinction between covenants 'running with the land' and mere assumptions or undertakings to perform some act independent of the land. There could be no question of liability of the defendant had the deed been an 'indenture' intended to be signed by both parties, even if the grantee had neglected to sign, but had accepted the deed. Neither would there be any serious question about the liability of the grantee in knowingly accepting a deed poll containing a covenant running with the land, such, as, for instance, a covenant providing for the erection of buildings of a certain class, or one requiring that the grantee refrain from conducting certain business or trades upon the land. The question here presented goes beyond either of these, and the court is called upon squarely to decide whether or not the mere acceptance of a deed by the grantee, knowing that it contains a covenant that the grantee assumes a certain specified indebtedness against the land, is merely a simple contract or equivalent to a promise under seal.

Supporting the doctrine that the stated conditions would amount to merely a simple contract may be noted the case of Thacker v. Hubard & Appleby, 122 Va. 379, 94 S.E. 929, 21 A. L. R. 414, where it is said:

'(6) Where the grantee of mortgaged premises did not sign the deed in which payment of certain notes was expressly assumed, but simply accepted it, his contract to pay the notes was not a specialty, but a simple contract debt'--citing Taylor v. Forbes' Adm'r 101 Va. 658, 44 S.E. 888; Willard v. Wood, 164 U.S. 502, 17 S.Ct. 176, 41 L.Ed. 531.

While the case of Taylor v. Forbes' Adm'r does so hold in the text of the opinion, it is admitted therein that in other states the rule is otherwise; the language used being:

'It is held in some of the states that an agreement of the grantee in a deed signed and sealed by the grantor only is in the nature of a covenant under seal, and consequently a specialty. In other it is held that such an agreement is in the nature of an assumpsit or implied contract arising from the acceptance of the deed, and consequently a simple contract.'

The case of Willard v. Wood, cited above, appears to be the leading case holding that the grantee's liability by reason of acceptance of a deed without himself executing or signing it, containing a covenant on his part to assume a mortgage, was a simple contract, and not a specialty, and subject to the limitations applicable to simple contracts. While the authorities cited, and all those so holding, are entitled to very serious consideration, the writer of this opinion believes the...