Green v. Hall

• Decision Date: 04 May 1895
• Citation: 45 Neb. 89,63 N.W. 119
• Parties: GREEN v. HALL ET AL.
• Court: Nebraska Supreme Court

45 Neb. 89

63 N.W. 119

GREEN

v.HALL ET AL.

Supreme Court of Nebraska.

May 4, 1895.

Syllabus by the Court.

1. An alleged agreement to pay an existing mortgage, as part of the consideration for the conveyance of mortgaged premises, is not established by recitations in the deed of conveyance that such deed is subject to said mortgage, nor a mere recitation that said mortgage is part of the consideration or purchase price.

2. A binding assumption of the payment of a mortgage by the grantee in a deed which merely recites the existence of such mortgage on the premises conveyed, and that such mortgage is a part of the consideration or purchase price, cannot be established by proof that, subsequent to the execution of such deed, the grantee therein named, orally, and without consideration, promised the mortgagee that he would pay such mortgage.

3. To entitle the holder of a mortgage to a deficiency judgment against a purchaser of the premises mortgaged, the proofs must be such as would enable such mortgagee to maintain against such purchaser an action for the amount secured by said mortgage.

Appeal from district court, Douglas county; Davis, Judge.

Action by Duff Green against George W. Hall, Victor H. Coffman, Edwin H. Sherwood, and others to foreclose a mortgage. From a deficiency judgment against defendants Sherwood and Coffman, they appeal. Reversed.E. W. Simeral, for appellants.

Kennedy, Gilbert & Anderson, for appellee.

RYAN, C.

This action was brought in the district court of Douglas county for the foreclosure of a mortgage made February 28, 1889, by the defendants, George W. Hall and Helen M. Hall, to plaintiff, securing payment of the sum of $6,000, due in five years from said date, which debt was evidenced by two promissory notes, one for $4,000, and the other for $2,000. On March 28, 1889, George W. Hall and his wife conveyed the mortgaged premises to Victor H. Coffman. This deed was by its terms subject to the above-described mortgage, which mortgage was expressly excepted from the covenants of warranty. On the 14th day of October, 1889, Victor H. Coffman, his wife joining, conveyed the mortgaged premises to Arvilla Allyn. This deed was made expressly subject to the above mortgage. On February 20, 1890, Arvilla Allyn and her husband reconveyed the mortgaged property to Victor H. Coffman, as expressed in their deed, subject to the mortgage thereon. On the 1st day of April, 1890, Victor H. Coffman and his wife conveyed the said real property to Edwin H. Sherwood, likewise subject to the mortgage above described; and in the deed of conveyance it was further recited that “the said mortgage was part of the above-mentioned consideration or the purchase price [$16,000].” In the above-mentioned petition for a foreclosure, the aforesaid conveyances were identified in very general terms, following which descriptions the averments were as follows: “That each of said deeds, in express terms, is made subject to said mortgage of $6,000, and said mortgage debt is charged upon the purchase money in each deed as a part thereof, and said mortgage is expressly executed [probably “excepted”] in the covenant of warranty in each deed, and each grantee assumes and agrees to pay said mortgage debt, and indemnify his grantor against the same. * * * That there is now due from said George W. Hall and his said grantees on said notes and mortgage the sum of $6,000, with interest payable annually, at the rate of 8 per cent. per annum.” Following the prayer for a foreclosure and a sale thereunder for satisfaction of the amount secured by the mortgage, there was this language: “That, on the coming in of the report of such sale, the court find a balance of the mortgage debt remaining unsatisfied. The court decree, adjudge, and direct the payment thereof by said George W. Hall and his said grantees, viz. Edwin H. Sherwood, Victor H. Coffman, and Arvilla Allyn, according to their respective legal liability,” etc. There was a foreclosure and sale, from which there were net proceeds sufficient to justify the application on the amount found due upon a confirmation of such credits as left a deficiency of $3,578.10, for which Edwin H. Sherwood, Victor H. Coffman, and Arvilla Allyn were held liable, as recited in the decree, “upon the promissory notes set forth in the petition.” From this deficiency judgment, Sherwood and Coffman alone appeal.

The appellee confidently relies upon the case of Rockwell v. Bank, 31 Neb. 128, 47 N. W. 641, to sustain the personal judgment rendered against the appellants. In the case cited, the Rockwells mortgaged to the bank certain real property, which they afterwards conveyed to Isaac Tebury. A foreclosure was...