Merriman v. Moore

• Decision Date: 23 January 1879
• Citation: 90 Pa. 78
• Parties: Merriman <I>versus</I> Moore.
• Court: Pennsylvania Supreme Court

Page 78

90 Pa. 78

Merriman versus Moore.

Supreme Court of Pennsylvania.

March 27, 1879.

January 23, 1879.

March 27th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Montgomery county: Of January Term 1879, No. 209.

Charles Hunsicker and Joseph W. Hunsicker, for plaintiff in error.—The court erred in refusing to allow plaintiff to prove that the defendant had expressly agreed to assume the payment of the plaintiff's mortgage and that said mortgage formed part of the consideration-money: Moore's Appeal, 7 Norris 450; Samuel v. Peyton, Id. 465; Thomas v. Wiltbank, 6 W. N. C. 477. The Act of June 12th 1878, Pamph. L. 1878, p. 205, is not retrospective. If intended to apply to cases before the passage of the act, it is unconstitutional. It not only affects the remedy, but destroys the contract: McCabe v. Emerson, 6 Harris 111; Penrose v. Erie Canal Co., 6 P. F. Smith 46.

James Boyd, B. E. Chain and C. H. Stinson, for defendants in error.—The offer of the plaintiff was irrelevant, for it did not tend to show any liability on the part of Cochran, against which the defendants in error agreed to indemnify him.

The facts show that Cochran, defendants' grantor, had not assumed and was not personally liable for this debt, and there was no offer to prove it. The holder of the mortgage, which is the subject of this suit, was no party to the deed to defendants, and was a total stranger to the transaction. There was no contract, privity, or consideration between him, the defendants' vendor, or the defendants. The consideration in defendants' deed and the receipt for the same show that the mortgage formed no part of the consideration-money as between the parties to it.

The offer had reference to a consideration directly inconsistent with that mentioned in the deed. Besides, the Act of the 12th of June 1878, Pamph. L. 205, provides, that in order to make a purchaser personally liable for encumbrances, the assumption of such personal liability must be in writing. This act does not impair the obligation of any contract, for there was no contract between the plaintiff in error, the holder of the mortgage and these defendants.

The act is a mere regulation as to what is sufficient evidence, a mere measure of proof.

Mr. Justice PAXSON delivered the opinion of the court, January 23d 1879.

In recent cases some attempts have been made to define with as much precision as possible the mutual and dependent rights and duties of mortgagees, mortgagors, the grantees of mortgagors and the alienees of such grantees. 1. A conveyance of land "under and subject" to a mortgage executed by the grantor, creates, as between themselves, a covenant of indemnity to the grantor on the part of the grantee. 2. If the grantee alien by a deed containing the same "under and subject" clause, without more, the alienee does not assume a liability to the mortgagee, or undertake to discharge the grantee's covenant of indemnity. 3. It is competent, however, for the mortgagee to show by adequate evidence that the alienee has taken upon himself not only the grantor's duty to indemnify the mortgagor, but a personal obligation to pay the mortgage-debt. 4. In all cases arising before the Act of 12th of June 1878, this adequate evidence may consist of stipulations in the deed, of written articles, outside its terms, or of a verbal contemporaneous agreement between the parties. And the fact of such an undertaking may be implied from circumstances attending and connected with the conveyance of the land: Moore's Appeal, 7 Norris 450; Samuel v. Peyton, Id. 465, and Thomas v. Wiltbank, 6 W. N. C. 477. Is the present case within these principles? It is an action of assumpsit brought by the assignee of a mortgagee against a grantee to enforce a promise to the grantor to pay off an outstanding mortgage, for which the grantor was not himself personally...