Hull v. Hayward

Decision Date20 June 1900
Citation83 N.W. 270,13 S.D. 291
PartiesJULIA H. HULL, Plaintiff and respondent, v. DANIEL HAYWARD et al., Defendant and appellant.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Davis, Lyon & Gates

Attorneys for appellant.

Keith & Warren

Attorneys for respondent.

Opinion filed June 20, 1900

CORSON, J.

This is an appeal by the defendant Daniel Hayward from the part of a decree in mortgage foreclosure proceedings adjudging him liable for any deficiency that may result from the sale of the mortgaged premises. In 1839 the appellant, Hayward, and the defendants Fleetwood and Hollister, executed to the plaintiff three promissory notes, aggregating the sum of $5,000, and to secure the same executed three several mortgages upon three separate and distinct lots owned by them as tenants in common. In May, 1891, Hollister conveyed his interest in the mortgaged premises to the appellant, who assumed and agreed to pay Hollister’s share of the mortgage debt. In 1893 appellant conveyed his undivided two-thirds of the mortgaged premises to C. C. Carpenter, who assumed and agreed to pay two-thirds of the mortgage debt. About the same time Fleetwood conveyed his undivided one-third of the mortgaged premises to said Carpenter, but without any agreement on the part of said Carpenter to pay any part of Fleetwood’s one-third of the mortgage debt. In 1895, Carpenter died, and Frances G. Carpenter was appointed executrix of his estate. The notes so executed by appellant,. Fleetwood, and Hollister not having been paid, this action was instituted for the purpose of foreclosing said three mortgages. Fleetwood was not served with summons in the action. The court held that the action upon the notes was barred as against Hollister. Frances G. Carpenter in her own name and as executrix failed to appear in the action. In the eighth paragraph of the complaint it is alleged “that no personal claim is made in this action against the defendant Frances G. Carpenter and Frances G. Carpenter as executrix, as aforesaid, or against any of the defendants herein, except the defendants Daniel Hayward, Charles H. Fleetwood, and William C. Hollister.” The court, after finding the facts substantially as stated, concludes as matter of law that the respondent is entitled to a judgment of foreclosure of said mortgages, and that, if the proceeds of said sale should not be sufficient to pay the sums of money therein directed to be paid, respondent, Julia M. Hull, should have judgment for such deficiency against the appellant, Daniel Hayward, personally.

The appellant contends that by the purchase of the mortgaged premises and the assumption of the mortgage debt Carpenter became liable to respond directly to the mortgagee for any deficiency in case of foreclosure, and that, although the respondent as mortgagee was not privy to this agreement, yet, it being made for her benefit, she could enforce it by a personal action...

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