Del Rio Land, Inc. v. Haumont
| Decision Date | 11 October 1973 |
| Docket Number | No. 11078--PR,11078--PR |
| Citation | 514 P.2d 1003,110 Ariz. 7 |
| Parties | DEL RIO LAND, INC., Appellant, v. Pierre H. HAUMONT, Jr. and Vernece Haumont, his wife, Appellees. |
| Court | Arizona Supreme Court |
Moeller, Jensen & Henry, by James Moeller and Michael J. LaVelle, Robbins & Francone, by Merrill W. Robbins, Phoenix, for appellant.
Cox & Cox, by L. J. Cox, Jr., Phoenix, for appellees.
By this appeal appellant seeks to set aside the judgment of the superior court ordering specific performance. The Court of Appeals granted the motion of appellees to dismiss the appeal as moot. 18 Ariz.App. 348, 501 P.2d 1189 (1972). We granted review. The decision of the Court of Appeals is vacated, and the judgment of the superior court is reversed.
The appellant corporation is a family corporation owned by the Carr family. The corporation ceased its business activity in 1968, and two years later the decision was made to sell the real property and equipment of the corporation. It was decided that the sale should be by auction. The auction was arranged and an agreement between appellant and the auctioneer provided that the land would be sold 'subject only to the existing mortgage.' A similar provision was contained in the advertising brochure sent out to interested persons including appellee Pierre Haumont.
It was the contention of the officers of appellant that the original listing with the auctioneer was for not less than $4,500 per acre 'at the discretion of the owners,' but the auctioneer secured a second listing, claiming to have lost the first, and he had the listing signed in blank promising to fill it out in the same terms as the original. The listing was filled out to read that the sale was 'subject to the approval of the auctioneers.'
There is a dispute in the facts as to whether the auctioneer announced the sale as subject to a mortgage of some $55,000 on the land or whether he announced the sale for a bid price as the full purchase price of the property with the mortgage to be paid from the proceeds of the sale. Appellee Pierre Haumont took the position in his deposition that the sale was under the latter conditions, which would have required the appellant to pay off the mortgage from the proceeds of the sale.
Appellant refused to accept the appellees' bid of $2,600 per acre. Haumont brought action for specific performance, and, after discovery by both parties had been completed, Haumont moved for, and was granted, summary judgment for specific performance.
It is axiomatic that a motion for summary judgment may not be granted if there is a material dispute in the facts. Viewing the facts in the light most favorable to the party opposing the motion for summary judgment (Hall v. Motorists Insurance Corporation, 109 Ariz. 334, 509 P.2d 604 (1973)) it appears that there are disputed fact issues which must be tried.
The trial court may have taken the position that there was not a material dispute in the facts, at least insofar as a resolution of the dispute between the corporation and Haumont. Apparently the trial court concluded that the term 'subject to the mortgage' meant that the seller would be required to use the proceeds of the sale to pay off the mortgage. This was the position advocated by the auctioneer and Haumont. We cannot agree with this interpretation of the words used.
The term 'subject to' has a variety of definitions depending upon the subject matter in which it is used. 83 C.J.S. p. 555. When the subject matter is real property and mortgages, the term 'subject to' has generally meant 'burdened with.' thus, a sale of real property subject to a mortgage means that the buyer acquires the property subject to the burden of the mortgage. The buyer, by taking subject to the mortgage, does not necessarily assume a personal obligation to pay it. Seale v. Berryman, 46 Ariz. 233, 49 P.2d 997 (1935); S. L. Nusbaum & Co. v. Atlantic Virginia Realty Corp., 206 Va. 673, 146 S.E.2d 205 (1966). A purchaser who buys real property subject to a mortgage pays the consideration required by the seller and takes the land subject to the encumbrances without a personal obligation to pay the mortgage, but subjects himself to loss of the property if the mortgage debt is not paid. Shepherd v. May, 115 U.S. 505, 6 S.Ct. 119, 29 L.Ed. 456 (1885).
A sale or auction subject to a mortgage means that the seller receives the purchase price and the buyer takes the property subject to the unpaid mortgage; while the buyer is not under a personal obligation to pay the mortgage, he must do so if he desires to retain the ownership of the property, for the seller is not required to use the funds paid him to pay off the mortgage. The terms of a sale which include a provision, 'subject to the mortgage' indicates that the actual or true purchase price of the property is in actuality the amount paid to the seller plus the amount of the mortgage.
After the trial court granted the motion for Haumount for summary judgment, a formal written judgment was prepared by the successful party, objections were filed by appellant, overruled by the trial court, and a formal written judgment requiring specific performance was signed and filed. Shortly thereafter the appellant corporation through its officers executed a written agreement of sale with Haumont, and the executed agreement was presented to the title company for processing the sale. The following month a notice of appeal was filed on behalf of the corporation.
The appellees moved to dismiss the appeal as moot, and, after hearing argument and considering the matters submitted with the motion, the Court of Appeals granted appellees' motion and dismissed the appeal.
It is well settled that an appellate court will not consider a case which is moot. Mesa Mail Publishing Co. v. Board of Supervisors, 26 Ariz. 521, 227 P. 572 (1924). In the past we have held that the payment of a money judgment made a case moot. In re Brown, 39 Ariz. 545, 8 P.2d 453 (1932). In the cited case the Court stated:
...
To continue reading
Request your trial
-
Murnan v. Stewart Title Guar. Co.
...[']subject to['] an encumbrance `does not necessarily [a]ssume a personal obligation to pay it." (quoting Del Rio Land, Inc. v. Haumont, 110 Ariz. 7, 9, 514 P.2d 1003 (1973))); Ticor Title Ins. Co. of Cal. v. FFCA/IIP 1988 Prop. Co., 898 F.Supp. 633, 639 (N.D.Ind.1995) (citing Am. Sav. & Lo......
-
Taylor v. Mandel
...14. Many of our sister states have also articulated that compliance with a court order is not a waiver. See Del Rio Land, Inc. v. Haumont, 110 Ariz. 7, 514 P.2d 1003, 1006 (1973) (Del Rio Land Inc. complied with judgment ordering specific performance before appealing to set aside order; the......
-
Wilde v. Swanson
...the statutes are unambiguous. We do not agree that "subject to" has a single, well-defined meaning. See Del Rio Land, Inc. v. Haumont, 110 Ariz. 7, 9, 514 P.2d 1003, 1005 (1973); 83 C.J.S. Subject at 555 (1953). Even if the phrase, "subject to," carried a definite meaning, we would not be p......
-
Vinson v. Marton & Associates
...must also consider whether Vinson's failure to file a supersedeas bond was an acquiescence in the judgment. In Del Rio Land, Inc. v. Haumont, 110 Ariz. 7, 514 P.2d 1003 (1973), the Arizona Supreme Court considered whether the appellant had acquiesced in a judgment by failing to post a super......