Hicks v. Hamilton

Citation144 Mo. 495,46 S.W. 432
PartiesHICKS v. HAMILTON.
Decision Date08 June 1898
CourtUnited States State Supreme Court of Missouri

Kinley & Kinley, for appellant. Peak & Ball, for respondent.

WILLIAMS, J.

Plaintiff held a note secured by a deed of trust upon a lot in Kansas City, belonging to one Clark, the maker of the note. Clark conveyed the property, subject to said deed of trust, to Cowling, but without any assumption by the latter of the mortgage debt. Cowling subsequently transferred said real estate, by warranty deed, to defendant. This deed contains a clause stating that the grantee therein "assumes and agrees to pay" said debt. The property, after the conveyance to defendant, was sold under the deed of trust. There was not enough realized to pay plaintiff's note, and, after crediting thereon the proceeds of the sale, he brought this suit to recover the deficiency from the defendant, on the ground that, by accepting the deed from Cowling, defendant assumed and agreed to pay said debt. This question, then, is presented: Can a mortgagee recover upon an agreement to assume the mortgage debt, inserted in a deed to a remote grantee of the premises, when the grantor in such deed purchased the property subject to the mortgage, but did not agree to pay, and was not liable for, such debt? Judgment was rendered in the circuit court for the defendant, and this was affirmed by the Kansas City court of appeals, in a very satisfactory opinion by Judge Smith. The case was then certified to this court, under constitutional requirements, because of a conflict between the decision of the court of appeals and Heim v. Vogel, 69 Mo. 529. The attention of this court was not directed, in the case last mentioned, to the difference between the liability of a grantee of mortgaged premises upon a clause in his deed assuming the mortgage debt when his grantor was bound therefor and such liability where there was no obligation to pay upon the part of the grantor. The general proposition was announced that, "where land is conveyed subject to a mortgage, the grantee does not undertake to become bound, by a mere acceptance of the deed, to pay the mortgage debt; but, if a grantee takes a deed containing a recital that the land is subject to a mortgage which the grantee assumes or agrees to pay, a duty is imposed on him by the acceptance, and the law implies a promise to perform it, on which promise, in case of failure, assumpsit will lie." The facts in that case might have justified the application of the principle stated by the court of appeals in this case. The question presented here, however, was not discussed, considered, or passed upon. The case was disposed of upon the general rule contained in the above quotation.

Can plaintiff recover upon defendant's implied promise raised by his acceptance of Cowling's deed, containing a clause binding defendant to assume and pay the mortgage debt? It is well settled that "a person for whose benefit an express promise is made in a valid contract between others may in this state maintain an action thereon in his own name." Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198, and cases cited. The agreement between the promisor and promisee must possess the necessary elements to make it a binding obligation; in other words, it must be a valid contract between the parties, to enable a third person, for whose benefit the promise is made, to sue upon it. A...

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21 cases
  • Springfield Gas & Elec. Co. v. Graves
    • United States
    • United States State Supreme Court of Missouri
    • 9 May 1949
    ......v. Flint, 275 U.S. 303,. 72 L.Ed. 290, 48 S.Ct. 134; Chicago, R.I. & P. Ry. Co. v. Maryland Cas. Co., 75 F.2d 596; Hicks v. Hamilton, 144 Mo. 495, 46 S.W. 432; Metz v. Cape. Girardeau Waterworks & Elec. Light Co., 202 Mo. 324, 100. S.W. 651. (16) That a contract ......
  • Employers' Indem. Corp. v. Garrett
    • United States
    • United States State Supreme Court of Missouri
    • 21 May 1931
    ...... Heim v. Vogel, . 69 Mo. 529; Curry v. Lafoon, 133 Mo.App. 176;. Crone v. Stinde, 156 Mo. 262 (overruling Hicks. v. Hamilton, 144 Mo. 495, holding that action did not. lie in favor of endorsee); Fitzgerald v. Barker, 70. Mo. 685. (2) The written contract ......
  • Springfield Gas & Electric Co. v. Graves, 40707.
    • United States
    • United States State Supreme Court of Missouri
    • 9 May 1949
    ......v. Flint, 275 U.S. 303, 72 L. Ed. 290, 48 S. Ct. 134; Chicago, R.I. & P. Ry. Co. v. Maryland Cas. Co., 75 F. (2d) 596; Hicks v. Hamilton, 144 Mo. 495, 46 S.W. 432; Metz v. Cape Girardeau Waterworks & Elec. Light Co., 202 Mo. 324, 100 S.W. 651. (16) That a contract may ......
  • Employers Indemnity Corp. v. Garrett
    • United States
    • United States State Supreme Court of Missouri
    • 21 May 1931
    ...the covenant in the deed. Heim v. Vogel, 69 Mo. 529; Curry v. Lafoon, 133 Mo. App. 176; Crone v. Stinde, 156 Mo. 262 (overruling Hicks v. Hamilton, 144 Mo. 495, holding that action did not lie in favor of endorsee); Fitzgerald v. Barker, 70 Mo. 685. (2) The written contract of sale of said ......
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