Rapp v. Stoner

• Decision Date: 20 November 1882
• Citation: 104 Ill. 618,1882 WL 10463
• Parties: DANIEL RAPPv.C. A. STONER et al.
• Court: Illinois Supreme Court

104 Ill. 618

1882 WL 10463 (Ill.)

DANIEL RAPP

v.C. A. STONER et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Bureau county; the Hon. GEO. W. STIPP, Judge, presiding.

Mr. JOHN SCOTT, and Messrs. FARWELL & WARREN, for the appellant:

Did Reiss agree to pay the mortgages as a part of the purchase price, or did he purchase merely the equity of redemption? The written agreement by which he assumed payment of the mortgages was not abrogated or rescinded by the subsequent parol agreement, but was only modified in regard to the price. It was competent for the parties to thus vary, modify or change it, or to supplement it by a verbal agreement, changing the price, yet leaving all the other provisions in full force. Cooke v. Murphy et al. 70 Ill. 96; Bishop v. Busse et al. 69 Id. 403.

The amount of the incumbrances was deducted from the purchase price of the land. This being so, the law implies an agreement to pay them, and holds the purchaser personally liable. Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay et al. 62 Id. 375; Maher v. Lanfrom et al. 86 Id. 513; 1 Jones on Mortgages, secs. 749, 750, 758, and 2 Id. sec. 1711, et seq; Wilson v. King et al. 23 N. J. Eq. 150; Brown v. Kurtz, 37 Iowa, 239; Drury v. Tremont Improvement Co. 13 Allen, 168; Braman v. Dowse, 12 Cush. 227; Halsey et al. v. Reed et al. 9 Paige Ch. 445; Marsh v. Pike, 10 Id. 595.

Dehors the deed and the written agreement, Reiss promised the mortgagor and the mortgagees, respectively, to pay the mortgage debts. These promises were not collateral, but original, the consideration being, from the mortgagor, the conveyance of the property; from the mortgagees, the extension of the time of payment. And the Statute of Frauds does not apply. Eddy et al. v. Roberts, 17 Ill. 505; Brown v. Strait, 19 Id. 88; Rabberman v. Wiskamp, 54 Id. 179; Runde v. Runde, 59 Id. 98; Beasley v. Webster, 64 Id. 458; Clifford v. Luhring, 69 Id. 401; Farley v. Cleveland, 4 Cowen, 432; Nelson v. Boynton, 3 Metc. 396; Alger v. Scoville, 1 Gray, 391; Brown v. Kurtz, 37 Iowa, 239.

Mr. WILLIAM ABBOTT, for the appellee C. G. Reiss:

A rescission may be effected by entering into a contract which takes the place of, and puts an end to, the original one, or by mere agreement to rescind. 2 Parsons on Contracts, 677-681; Browne on Statute of Frauds, secs. 429-436; Fry on Specific Performance of Contracts, chap. 11, secs. 682, 696-699, et seq; Follansbee v. Adams, 86 Ill. 13; Bishop v. Busse, 69 Id. 403; Huey v. Grinnell, 50 Id. 179; King v. Mason, 42 Id. 223.

Taking a deed subject to an outstanding mortgage, creates no personal liability on the grantee to pay off the incumbrance, unless he has by contract, expressed or clearly implied, specially agreed to do so. To charge the purchaser, there must be apt words used in the deed itself, which clearly imply an obligation intentionally created by the one party and assumed by the other, to constitute a personal obligation for its payment. 2 Washburn on Real Property, 571, 518, 545; 1 Jones on Mortgages, (2d ed.) secs. 740, 748, 749, 751-756, 761, 762, and 2 Id. sec. 1712; 2 Parsons on Contracts, 547-566; Comstock v. Hitt, 62 Ill. 375; Maher v. Lanfrom, 86 Id. 513; Belmont v. Cowan, 22 N. Y. 438; Hubbard v. Ensign, 19 Conn. 372.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by Daniel Rapp, in the circuit court of Bureau county, to foreclose a mortgage executed by Christian A. Stoner and wife to the complainant, on certain premises in Princeton, Bureau county. The bill prays for a foreclosure of the mortgage, and a decree against C. G. Reiss, who purchased the premises of Stoner after the mortgage was executed, for the amount of any deficit after a sale. On the hearing in the circuit court upon the pleadings and evidence, a decree was rendered dismissing the bill as to Reiss, which decree was affirmed in the Appellate Court, and the complainant in the bill has appealed to this court.

The record, although quite large, presents but a single question. Did Reiss, the appellee, when he purchased the mortgaged premises of Stoner, assume, and agree to pay, the mortgage indebtedness, or did he purchase merely the equity of redemption, subject to the mortgages on the property? If Reiss purchased merely the equity of redemption, and made no contract to pay the mortgages on the land, the decree of the circuit court was correct. If, on the other hand, Reiss purchased the property of Stoner, and, as a part of the contract of purchase, assumed, and agreed to pay, the mortgage indebtedness, he became personally liable, and an appropriate action may be maintained against him to enforce his liability under the contract.

The property involved is described as lots 3, 4 and 5, in subdivision of lot 13, in Stoner's addition to the town of Princeton, upon which had been erected a two-story brick block, divided into three stores. Prior to the sale to Reiss, Stoner had mortgaged lot 3 to E. H. Swayne, and lots 4 and 5 to John Prouty. These two mortgages were a first lien on the property. Stoner had also executed a second mortgage on lots 3 and 4 to Daniel Rapp, complainant in the bill. At the time of the sale to Reiss, August 27, 1875, the mortgage indebtedness on the three mortgages was all due, and amounted, in the aggregate, to the sum of $10,191. The deed from Stoner and wife to Reiss, for the three lots, bears date August 27, 1875. The consideration expressed is $15,000. It recites that it is made subject to mortgages, as follows: One given to E. H. Swayne, April 9, 1868, due in three years, $2000, at ten per cent interest; one given to J. Prouty, July 25, 1868, due in two and five years, $5000, at ten per cent interest; one given to D. Rapp, July 16, 1873, due in two years, $3070, at ten per cent interest. The deed required Reiss to pay all taxes for 1875, and contains the usual covenants of warranty, except as to the above incumbrances. For the conveyance of this property, and for the conveyance of a house and lot in Princeton, valued at $____, Reiss conveyed to Stoner 560 acres of Kansas lands.

The position of complainant is, that Reiss, as a part of the consideration of the purchase of the property, assumed, and agreed to pay, the mortgages upon it. Much evidence bearing upon this question was introduced on the hearing, which we have carefully examined, and while the question of fact is one not entirely free from doubt, still we are not prepared to say that the evidence preponderates against the decree rendered in the circuit court. In the first place, a proposition to trade was written out and executed by the parties, which was as follows:

“Proposition made this 24th day of August, A. D. 1875, to trade, by and between C. A. Stoner and C. G. Reiss. The said C. A. Stoner proposes to trade his brick block of three stores, located in Princeton, Illinois, including lots 3, 4 and 5, in subdivision of lot 13, in Stoner's addition to the town of Princeton, for property owned by said C. G. Reiss, located in the State of Kansas, to-wit, 480 acres...