Canfield v. Shear
| Decision Date | 18 October 1882 |
| Citation | 13 N.W. 605,49 Mich. 313 |
| Court | Michigan Supreme Court |
| Parties | CANFIELD v. SHEAR. |
Where a purchaser buys mortgaged premises from the mortgageor subject to the mortgage, and his deed is expressly made subject to it, though it does not in terms bind him to pay it, he is to be treated, as between himself and the mortgageor, as having assumed the mortgage, and is personally liable for whatever deficiency there may be after foreclosure sale.
Where a party brought in by an amended bill as defendant in foreclosure is charged with a personal liability, the year allowed before foreclosure sale should run from the date of filing the amended bill.
Costs of the supreme court are denied where each party prevails on one branch of an appeal.
Appeal from Wayne.
Bill to foreclose a mortgage given by Harmon Shear to Lewis Cass, and assigned by him to Mary C. Canfield. The other defendants are brought in as subsequent purchasers, and an amended bill was filed charging defendant Alexander T. Campau as personally liable for the amount due on the mortgage, on the ground that he had purchased from Shear subject thereto. The decree held him to be liable, and he appeals. Decree modified.
Walker & Walker, for complainant.
D.J. Campau, Jr., and Moore & Moore, for defendant and appellant.
The question on the merits which this appeal presents is whether the decree is right in charging Alexander T. Campau personally with the mortgage debt. Campau bought the mortgaged premises of the defendant Shear, the mortgageor subject to the mortgage, and his deed is expressly made subject to the mortgage, but does not in terms obligate Campau to pay it. His negotiation was had through the agency of one Smith, and Campau denies that he authorized Smith to promise payment, or that he ever made any personal promise. It is proved beyond question, however, that Smith had authority from Campau to purchase; that he agreed to take the mortgaged premises and to pay $12,750 for them; that he did pay all except the amount owing on the mortgage, and that the reason why the remainder was not paid was because the mortgage was not then due, and the mortgagee would not receive it. The payment was therefore postponed until the mortgage fell due, and both Smith and Shear understood Campau was to pay it. We think the assumption of the mortgage debt by Campau, as between himself and Shear, is fully made out and to cast upon Shear...
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