Siekman v. Moler
| Citation | 47 Idaho 446,276 P. 309 |
| Decision Date | 02 April 1929 |
| Docket Number | 5115 |
| Parties | WM. A. SIEKMAN and CLARA SIEKMAN, Respondents, v. CLARENCE G. MOLER and BARNES BROTHERS, INCORPORATED, a Corporation, Defendants, and HENRY WHITSON and HESTER G. WHITSON, His Wife, Appellants |
| Court | United States State Supreme Court of Idaho |
MORTGAGES-RECITAL THAT DEED IS SUBJECT TO-LIABILITY OF GRANTEE-ASSUMPTION OF MORTGAGE DEBT BY GRANTEE-PAROL AGREEMENT-PROOF-STATUTE OF FRAUDS.
1. Purchaser of mortgaged property may by contract bind himself to pay and assume personal responsibility for payment of mortgage indebtedness.
2. An agreement to assume and pay mortgage debt will be implied from proof that amount of indebtedness was deducted from agreed purchase price and retained by grantee.
3. Oral agreement, either express or implied, to assume and pay mortgage, is not inconsistent with deed of conveyance reciting it is made subject to mortgage and fact that grantee assumed and agreed to pay debt may be shown.
4. Deed of conveyance does not merge previous contracts and negotiations of party so as to preclude proof of an antecedent agreement on part of purchaser to pay mortgage debt.
5. Evidence showing promise by grantee to pay mortgage debt is received, not to vary terms of deed, but to show consideration for transfer, and this may be done where consideration as expressed in deed is not contractual provision, but is a recital only.
6. Mortgagee may enforce agreement of assumption of mortgage indebtedness against purchaser.
7. Where amount of mortgage indebtedness is deducted from purchase price and retained by purchaser, purchaser assuming mortgage indebtedness does not promise to answer for debt of another so as to require agreement to be in writing, under statute of frauds (C. S., sec. 7976, subd. 2).
8. In action to foreclose mortgage and for deficiency judgment complaint alleging, in substance, that conveyance to purchaser was subject to mortgage, that amount due on mortgage was then deducted from purchase price, and that purchaser agreed to assume and pay mortgage debt, held sufficient to warrant recovery against purchaser upon proof of an express contract or of facts from which promise to pay might be implied.
9. Although defendant may question the sufficiency of a complaint for first time in supreme court, complaints so attacked are not subjected to same strict rules as when questioned by demurrer in trial court.
10. Deed reciting that conveyance was made in consideration of sum of $10 and other good and valuable considerations, and that it was subject to mortgage, did not show promise by grantee to pay mortgage debt, since use of word "subject" tended to disprove any intention on part of grantee to assume personal responsibility for payment of mortgage indebtedness.
11. Party relying upon oral evidence to establish liability on part of purchaser to pay mortgage must prove facts in clear satisfactory, and convincing manner, especially where deed tends to establish an intention to convey mortgagor's interest only and not an intention on part of grantee to become personally liable.
12. In action to foreclose a mortgage and for deficiency judgment evidence held insufficient to sustain jury's findings that vendor and purchaser orally agreed upon sale of land at definite price of $1,750, and that amount of mortgage debt was deducted from agreed purchase price and retained by purchaser.
13. In action to foreclose a mortgage and for deficiency judgment evidence held insufficient to clearly, convincingly, and satis- factorily show that purchaser expressly assumed payment of mortgage debt.
14. Purchaser of mortgaged property held not personally liable for mortgage indebtedness, where he did not expressly assume payment and amount of indebtedness was not deducted from purchase price.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.
Action to foreclose mortgage and for deficiency judgment. Judgment for plaintiffs. Modified and affirmed.
Judgment affirmed. Appellant recover costs.
Wm. C. Dunbar and Charles F. Reddoch, for Appellants.
It is settled law that a conveyance of property subject to a mortgage, imposes no personal liability upon the grantee. (41 C. J. 717; Shepard v. May, 115 U.S. 505, 6 S.Ct. 119, 29 L.Ed. 456; Lloyd v. Lowe, 63 Colo. 288, 165 P. 609, L. R. A. 1918A, 999; McArthur v. Goodwin, 173 Cal. 499, 160 P. 689; 4 Words & Phrases (2d Series), p. 734.)
No fraud or mistake was alleged, and in the absence of such an allegation, parol evidence should not have been received to vary the terms of the contract, embodied in the deed, relative to the property being taken subject to the mortgages. (34 Cyc. 974; Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581; First Nat. Bank v. Cruickshank, 38 Idaho 789, 225 P. 142; Hurt v. Monumental Mercury Min. Co., 35 Idaho 295, 206 P. 184; Tyson v. Neill, 8 Idaho 603, 70 P. 790; Johnson v. Benham, 163 Minn. 31, 203 N.W. 444; Newton v. Clark, 174 N.C. 393, 93 S.E. 951; Peninsula Lumber Co. v. Royal Indemnity Co., 93 Ore. 684, 184 P. 562; Thraves v. Greenlees, 42 Okla. 764, 142 P. 1021.)
The recital in a deed that the conveyance is subject to incumbrances cannot be varied by parol. (Wayne International Building & Loan Assn. v. Beckner, 191 Ind. 664, 134 N.E. 273; Garner v. Garner, 117 Miss. 694, 78 So. 623; Thompson v. Bryant, 75 Miss. 12, 21 So. 655; Dodge v. Cutrer, 101 Miss. 844, 58 So. 208.)
All previous agreements affecting the sale of the property are presumably merged in the deed. (18 C. J., p. 270, sec. 231; Hibernia Savings & Loan Society v. Dickinson, 167 Cal. 616, 140 P. 265; Newmyer v. Roush, 21 Idaho 106, Ann. Cas. 1913D, 433, 120 P. 464.)
W. H. Davison and Frawley & Koelsch, for Respondents.
The vendee of a mortgagor who assumes, expressly or impliedly, the mortgage debt, is liable to the mortgagee for a deficiency judgment.
A purchaser of mortgaged property does so assume the mortgage debt if the amount of the same is considered part of the purchase price of the property. (41 C. J. 724; Hopkins v. Warner, supra; Heid v. Vreeland, 30 N.J. Eq. 591; White v. Schader, 185 Cal. 606, 21 A. L. R. 499, 198 P. 19; Moore v. Boise Land & Orchard Co., 31 Idaho 390, 173 P. 117; Sanderson v. Turner, 73 Okla. 105, 2 A. L. R. 347, 174 P. 763; Bristol Savings Bank v. Stiger, 86 Iowa 344, 53 N.W. 265.)
Parol evidence is admissible to show the true consideration for a deed. (Morgan v. South Milwaukee Lake View Co., 97 Wis. 275, 72 N.W. 872.)
Plaintiffs, as assignees, instituted this action for the foreclosure of mortgage executed by Clarence G. Moler and wife in favor of Barnes Bros., Incorporated, and for deficiency judgment against Moler, the mortgagor, and Henry Whitson, a subsequent grantee of the mortgaged premises. The issue in this court relates solely to the personal liability of the latter. The complaint alleged that subsequent to the execution of the mortgage the mortgagors conveyed the premises to the defendant, Whitson, and By answer the defendant, Whitson, admitted the execution and delivery of the conveyance but denied that the amount of the debt was deducted from the purchase price or that he agreed to assume and pay the mortgage debt. In answer to special interrogatories submitted, a jury found that Whitson and Moler orally agreed upon a sale of the land at a definite price of $ 1,750; that Whitson orally agreed to assume and pay the mortgage debt and that for the purpose of ascertaining the amount of cash to be paid to Moler the amount of the mortgage was deducted from the agreed purchase price. The court found that the answers so made were sustained by proof and adopted them, found also that Whitson accepted the conveyance and retained out of the purchase price the amount of such indebtedness and concluded that plaintiffs were entitled to recover from Whitson and Moler any deficiency that might remain. Decree was accordingly entered. The motion of the defendant Whitson for new trial was denied and from that order as well as from the decree entered, said defendant has appealed. The other defendants defaulted.
The appellant advances, and relies for a reversal upon, the following contentions: 1. Since the deed recited merely that it was subject to the mortgage, evidence that he had orally agreed to pay the debt or any evidence from which a liability to pay might be implied varied the terms of the deed and was therefore inadmissible; 2. That the agreement to assume and pay the debt was a promise to answer for the debt of another and was invalid because not in writing; 3. That the complaint did not allege facts sufficient to disclose a liability on the part of Whitson; and, 4. The insufficiency of the evidence to sustain the findings.
The purchaser of mortgaged property may, by...
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