Hare v. Murphy

• Decision Date: 18 September 1895
• Citation: 64 N.W. 211,45 Neb. 809
• Parties: HARE v. MURPHY.
• Court: Nebraska Supreme Court

45 Neb. 809

64 N.W. 211

HARE

v.MURPHY.

Supreme Court of Nebraska.

Sept. 18, 1895.

Syllabus by the Court.

Where real estate incumbered by a mortgage is sold and conveyed, and there is inserted in the deed a clause which states that the grantee assumes and agrees to pay the mortgage debt, and the deed is accepted by the purchaser of the land with knowledge that it contains the clause; or where the purchaser of land agrees, as a part of the consideration for the sale of the property to him, to assume and pay a mortgage indebtedness existing against the land,--he becomes personally liable for the payment of the mortgage debt. And this is true whether his immediate grantor was so liable or not; and the liability thus created may be enforced by the mortgagee or his assigns, as it was for his or their use and benefit that such promise was made.

Error to district court, Lincoln county; Neville, Judge.

Action by Robert Hare against E. W. Murphy. Judgment for defendant, and plaintiff brings error. Reversed.F. S. Howell, for plaintiff in error.

T. C. Patterson and Grimes & Wilcox, for defendant in error.

HARRISON, J.

The plaintiff, as assignee and owner of two promissory notes, and a mortgage on certain real estate, given to secure their payment, instituted this action against the defendant, to whom the real estate had been sold by the grantee or party purchasing from the mortgagor, to recover the amount due upon the notes and mortgage, basing the suit upon a clause, in the conveyance of the lands to defendant, by which, it is claimed, defendant assumed and agreed, on his part, to pay the mortgage indebtedness. The petition in the case recites that on December 26, 1889, D. A. Spraul executed and delivered to Maggie Callender two promissory notes, each in the amount of $250, and a mortgage, to secure their payment, on tracts of land therein described, and situate in Logan county; the conveyance by the mortgagor, on the succeeding day, to William L. Schuster, and the sale and conveyance of the lands again on the 31st day of December, 1889, by Schuster, to the defendant, E. W. Murphy, and his agreement, as a part of the consideration or purchase price of the property, to pay the indebtedness shown by the notes and mortgage; and that, pursuant to such promise, and evidencing it, there was inserted in the deed of the lands by Schuster to defendant a clause in which it was stated that the real estate was incumbered, and that the purchaser assumed and agreed to pay the incumbrance. It also states the purchase of the notes and mortgage by the plaintiff, and their transfer and assignment to him, and nonpayment, etc., and closes with a prayer for judgment. The answer contained a denial of any assumption of or agreement by defendant to pay the mortgage indebtedness; a statement that defendant never received or accepted the conveyance or deed described in plaintiff's petition, and that no deed of the lands had ever been delivered to him; that he never entered into or had possession of the premises described in the petition; that a deed, a copy of which was attached to the petition, was caused to be recorded in Logan county by some person unknown to defendant, and without his knowledge or consent; that there was no consideration in the purchase of the lands, or the “equity” of the vendor, Schuster, therein, for an assumption or agreement on his part to pay the amount of the incumbrances or mortgages, and, further, that his grantor, Schuster, had not assumed the payment of the incumbrances, and no liability existed against such grantor for their payment. The reply of plaintiff was, in the main, a general denial of the allegations of the defendant's answer, and also stated: That the deed of the lands executed by Schuster, and to defendant, as grantee, was filed for record in...