Hinckley Estate Co. v. Gurry, 6003

• Citation: 53 Idaho 551,26 P.2d 121
• Decision Date: 16 October 1933
• Docket Number: 6003
• Court: Idaho Supreme Court
• Parties: HINCKLEY ESTATE COMPANY, a Corporation, Appellant, v. J. L. GURRY and ALICE B. GURRY, His Wife, BERTHA DRISCOLL, an Unmarried Woman, AGNES DRISCOLL and IDAHO PAINT & GLASS COMPANY, a Corporation, Defendants; GEORGE C. DISSAULT and M. A. DRISCOLL, Respondents

26 P.2d 121

53 Idaho 551

HINCKLEY ESTATE COMPANY, a Corporation, Appellant, v. J. L. GURRY and ALICE B. GURRY, His Wife, BERTHA DRISCOLL, an Unmarried Woman, AGNES DRISCOLL and IDAHO PAINT & GLASS COMPANY, a Corporation, Defendants;

GEORGE C. DISSAULT and M. A. DRISCOLL, Respondents

No. 6003

Supreme Court of Idaho

October 16, 1933

MORTGAGES - ASSUMPTION BY GRANTEE - PRESUMPTION - BURDEN OF PROOF-EVIDENCE-MOTION FOR NONSUIT.

1. Assumption of mortgage by mortgagor's grantee will not be presumed, and burden is on mortgagee to make prima facie showing, in support of allegations alleging such assumption.

2. Motion for nonsuit admits truth of plaintiff's evidence and every fact which it tends to prove, entitling plaintiff to benefit of all inferences that can justifiably be drawn from evidence.

3. Inclusion in deed of assumption clause whereby grantee assumed to pay existing mortgage is insufficient, standing alone, to prove grantee's assumption of mortgage, where deed is not signed by grantee.

4. Proof of grantor's recording of deed, without other circumstances, is insufficient to bind grantee, establish delivery or grantee's acceptance thereof.

5. Grantee's acceptance of deed, including clause assuming mortgage, need not be by express words, but may be shown by acts, conduct or words of parties showing intention to accept.

6. Execution and recording of deed, including clause assuming mortgage, together with grantee's subsequent conveyance containing same assumption clause, acknowledged by grantee held sufficient to show that grantee assumed mortgage as against motion for nonsuit.

7. Evidence that grantee accepted deed containing same mortgage assumption clause as deed to grantor, paid interest on mortgage, procured extension of payment, and conveyed by quitclaim deed, made prima facie showing of assumption of mortgage, as against motion for nonsuit.

8. Purchaser of mortgaged realty, deducting from purchase price amount of mortgage indebtedness, assumed payment of mortgage and became personally liable for deficiency.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action to foreclose mortgage. Appeal from judgment denying deficiency judgment as to George C. Dissault and M. A Driscoll. Reversed and remanded.

Reversed and remanded, with instructions. Costs awarded to appellant.

H. J Swanson, for Appellant.

The acceptance by a grantee of a deed which recites that the grantee assumes a mortgage indebtedness, or that he undertakes some affirmative obligation, binds the grantee to a personal liability to pay such indebtedness, or to perform such obligation, although such grantee never signs such deed. (Hunt v. Curry, 153 Tenn. 11, 282 S.W. 201; Sanitary Dist. of Chicago v. Chicago Title & Trust Co., 278 Ill. 529, 116 N.E. 161; Millikan v. Hunter, 180 Ind. 149, 100 N.E. 1041; Henry v. Heggie, 163 N.C. 523, 79 S.E. 982.)

Jones, Pomeroy & Jones, for Respondent Dissault, and Walter H. Anderson, for Respondent Driscoll.

"The mere recital in a deed that the grantee assumes and agrees to pay a mortgage debt or the mere acceptance and recording of the deed by the grantee is not sufficient evidence of an assent to such assumption clause, the recording of a deed being evidence of delivery and acceptance only so far as it relates to the passing of title." (LaMonte Bank v. Crawford, (Mo. App.) 27 S.W.2d 762; Johnson v. Maier, 194 Mo.App. 169, 172, 187 S.W. 143.)

"Recording of a deed which imposes an obligation upon the grantee to assume and pay a pre-existing mortgage is not prima facie evidence of its delivery and acceptance though the recording of a unilateral instrument, a deed containing no contract of assumption, may be." (Parker v. Inter-State Trust & Banking Co., 56 F.2d 792; Jones on Mortgages, 8th ed., sec. 940.)

BUDGE, C. J. Givens and Wernette, JJ., concur. Morgan and Holden, JJ., dissent.

OPINION

BUDGE, C. J.

This action was brought to foreclose a real estate mortgage. Respondents, as subsequent grantees of Gurry and wife, mortgagors, were made parties defendant, against whom appellant sought to recover a deficiency judgment. Motions for nonsuit made in behalf of respondents were sustained and judgment entered decreeing foreclosure of the mortgage but denying recovery as to respondents, and from the latter part of the judgment this appeal is taken.

The record discloses the following facts: On November 17, 1925, Gurry and wife made, executed and delivered to A. C. Hinckley their promissory note for $ 7,000 due three years after date, and to secure the payment thereof made, executed and delivered to A. C. Hinckley, on the same day, their mortgage covering certain real property in Pocatello. After the death of A. C. Hinckley, by probate proceedings and assignment, the note and mortgage were transferred to appellant. On November 26, 1926, Gurry and wife executed a warranty deed to the premises, in favor of Dissault, containing the following clause:

"The deed is given and accepted subject to one certain mortgage for $ 7,000.00, . . . . which the party of the second part (Dissault) agrees to pay."

which was recorded at the request of Gurry. On March 19, 1927, Dissault, a single man, conveyed the property by warranty deed to M. A. Driscoll, the deed containing the following clause:

"This deed is given and accepted subject to one certain mortgage for $ 7,000.00, . . . . which the party of the second part (Driscoll) agrees to pay."

This deed was duly recorded at the request of M. A. Driscoll. On June 20, 1931, M. A. Driscoll and wife conveyed the property by quitclaim deed to Bertha Driscoll. Default having been made in the terms of the mortgage, appellant, on August 4, 1931, commenced this action.

The sole question presented by the assignments of error is whether or not the trial court erred in sustaining the motions of respondents for nonsuit.

It should first be observed that it is alleged in the complaint that Dissault accepted the deed from Gurry and wife to him, and agreed to pay the mortgage referred to therein, also that M. A. Driscoll accepted the deed from Dissault to him, and agreed to pay the mortgage therein referred to, which allegations were denied by respondents. The assumption of a mortgage by the grantees of the mortgagor will not be presumed (2 Jones on Mortgages, p. 292, sec. 933), and the burden was upon appellant to make a prima facie showing in support of such allegations. Each of the motions for nonsuit was based upon the ground that "plaintiff has failed to make out a case imposing a personal liability" as to the respective respondents.

The rule is well established that a motion for nonsuit admits the truth of plaintiff's evidence and of every fact which it tends to prove, and he is entitled to the benefit of all inferences that can justifiably be drawn from the evidence. (Maryland Casualty Co. v. Boise Street Car Co., 52 Idaho 133, 11 P.2d 1090; First Nat. Bank v. Stringfield, 40 Idaho 587, 592, 235 P. 897; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 323, 227 P. 29; Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044; Bank of Commerce v. Baldwin, 12 Idaho 202, 211, 85 P. 497.)

It is therefore incumbent upon us to determine whether, from the evidence introduced and the facts which it tends to prove, and giving appellant the benefit of justifiable inferences to be drawn therefrom, appellant made prima facie proof of the assumption of the mortgage by the respective respondents sufficient to withstand the motions for nonsuit.

In Siekman v. Moler, 47 Idaho 446, 451, 276 P. 309, 310, this court said:

"The purchaser of mortgaged property may, by contract, bind himself to pay and assume personal responsibility for the payment of the mortgage indebtedness. The agreement may be incorporated in the deed of conveyance or evidenced by some other writing; it may rest wholly in parol or may be implied from the transaction or shown by circumstances. (Hopkins v. Warner, 109 Cal. 133, 41 P. 868; Holland v. W. C. Belcher Land Mortgage Co., (Tex. Civ. App.) 248 S.W. 803; 18 Cal. Jur. 48; 41 C. J. 721."

Taking up first the evidence tending to show the assumption of the mortgage by Dissault, we find that the deed from Gurry and wife to Dissault, containing the assumption clause quoted above, was admitted in evidence, showing on its face that the same was duly recorded at the request of J. L. Gurry, but that the same was not signed by Dissault. The record title to the property remained in Dissault for over four months, at the end of which time he executed, acknowledged and delivered the deed from himself to Driscoll containing the same assumption clause as in the deed to him, the same being recorded at the request of Driscoll.

Proof of the inclusion in a deed of a clause whereby the grantee assumes and agrees to pay an existing mortgage on the premises, which deed is not signed by the grantee, is not sufficient, standing alone, to prove the grantee's assumption of the mortgage. (41 C. J. 726.) Likewise,...