Sanderson v. Turner
| Citation | 174 P. 763,73 Okla. 105,1918 OK 390 |
| Decision Date | 23 July 1918 |
| Docket Number | 9037. |
| Parties | SANDERSON et al. v. TURNER et ux. |
| Court | Supreme Court of Oklahoma |
Rehearing Denied Sept. 17, 1918.
Syllabus by the Court.
Where land is sold subject to mortgage and the amount secured by the mortgage is deducted from the consideration, there is an implied liability on the part of the purchaser, in the absence of an express agreement, to assume the payment of the indebtedness secured by the mortgage.
Where land incumbered by a mortgage is sold subject to the mortgage, the land itself is the primary fund out of which to satisfy the mortgage.
Where a grantor sells land incumbered by a mortgage subject to the mortgage, and the grantee assumes the payment of the mortgage, and the land is mediately or immediately reconveyed to the grantor, and in each transfer the amount secured by the mortgage is deducted from the consideration, there is an implied assumption of the indebtedness secured by the mortgage by each grantee, and the grantor, when the land is reconveyed to him, assumes the payment of said mortgage, and cannot recover from his grantee on his grantee's assumption of payment of said mortgage.
Commissioners' Opinion, Division No. 3. Error from District Court, Jackson County; Will Linn, Judge.
Action by George C. Turner and wife against W. E. Sanderson and another. From a judgment for plaintiffs, defendants bring error. Reversed and remanded, with directions.
Robinson & Whiteside, of Altus, for plaintiffs in error.
Guy P Horton and P. K. Morrill, both of Altus, for defendants in error.
On the 18th day of December, 1909, the defendant in error, George C Turner, was the owner of 160 acres of land situated in Jackson county, which land was incumbered with a mortgage, in the sum of $2,500. On that date he conveyed 80 acres of said land to plaintiffs in error, W. E. Sanderson and Raymond H Fox, for the consideration of $250, subject to the mortgage, which the grantees, W. E. Sanderson and Raymond H. Fox, agreed to assume. On the 6th day of March, 1911, Raymond H. Fox conveyed his undivided one-half interest to said 80 acres to W. F. Sampson, for a nominal sum, and subject to the mortgage. On the 12th day of February, 1912, Sanderson and Sampson conveyed the whole of the said 80 acres to E. C. Garrison, for a nominal sum, subject to said mortgage. Thereafter, on the 21st day of August, 1912, the said Garrison conveyed the said 80 acres to J. E. Lawson, for a nominal sum, subject to said mortgage. On the 20th day of December, 1913, J. E. Lawson conveyed said 80 acres of land to Geo. C. Turner, the defendant in error, for the nominal sum of $50, subject to the mortgage aforesaid. Thereafter the said Turner, the maker of said mortgage and the first owner of the said premises, paid off the indebtedness with interest. The said Turner brought this action against Sanderson and Fox to recover the sum for which said mortgage was given to secure, and interest, under the agreement of said Sanderson and Fox to assume the same. There was judgment in the trial court in favor of the plaintiff Turner and against the defendants, Sanderson and Fox, for the amount of said mortgage, and interest. From this judgment Sanderson and Fox appeal.
The only question presented for consideration on appeal is whether or not the defendants are liable, under the circumstances, to the plaintiff under their agreement to assume said mortgage. The plaintiff Turner had to pay the same to save the premises from being foreclosed under said mortgage. The law is well settled that, where land which is incumbered is sold subject to the incumbrance and the amount of the incumbrance is deduced from the consideration, there is an implied liability on the part of the purchaser, in the absence of an express agreement, to assume the payment of the incumbrance. Thompson v. Thompson, 4 Ohio St. 333; In re May, 218 Pa. 64, ...
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