Webster v. Fleming

• Decision Date: 17 February 1899
• Citation: 52 N.E. 975,178 Ill. 140
• Parties: WEBSTER v. FLEMING.
• Court: Illinois Supreme Court

178 Ill. 140

52 N.E. 975

WEBSTER

v.FLEMING.

Supreme Court of Illinois.

Feb. 17, 1899.

Appeal from appellate court, First district.

Action by William Fleming against William E. Webster. There was a judgment for plaintiff, and defendant appealed to the appellate court, and from an order of affirmance (73 Ill. App. 234) defendant appeals. Affirmed.James A. Fullenwider and John M. Hamnton, for appellant.

Jones & Strong, for appellee.

This is an action of assumpsit, originally brought by the appellee, William Fleming, against the appellant, William E. Webster. A demurrer was filed to the original declaration, and sustained. A demurrer was also filed to the declaration, after it had been amended, and sustained. The declaration, as finally amended, alleges that ‘William Fleming, plaintiff, * * * complains of William E. Webster, defendant.’ Several pleas were filed to the declaration, some of which were demurred to, and the demurrers were sustained. Pleas, however, were finally framed to which all demurrers were overruled, and replications were filed thereto, and the cause was put at issue. By agreement, a jury was waived, and the cause was submitted for trial to the court without a jury. Upon the trial appellant submitted to the court nine propositions to be held as law in the decision of the case, all of which were marked ‘Held’ by the court, to which action of the court the appellant excepted. The defendant submitted to the court five propositions to be held as law in the decision of the case, of which the first, second, and fifth were refused, and the third and fourth were held by the court after having been modified, to which refusal and modification the defendant excepted. The finding of the court was in favor of the plaintiff below, the present appellee. Motions for new trial and in arrest of judgment were overruled, and exceptions were taken to the orders so overruling them. Judgment was thereupon entered in behalf of the plaintiff for $1,268.89 and costs. An appeal was taken to the appellate court. In the appellate court the appellee remitted the sum of $120.55 from the judgment of the lower court, and thereupon the appellate court affirmed the judgment of the lower court for $1,148.34 and costs. The present appeal is prosecuted from such judgment of affirmance.

The declaration alleges, substantially, that on December 17, 1890, John J. Shutterly, being the owner of lot 7, and four other lots, in block 19, in Mallette & Brownell's subdivision of Auburn Park, in Cook county, sold and conveyed the same, by warranty deed, to the appellant, William E. Webster; that in this warranty deed the grantee, Webster, assumed and agreed to pay, as a part of the consideration for the five lots, incumbrances on said lots amounting to $19,860, with interest after September 1, 1890, besides an alley assessment of $100 and taxes of 1890; that this incumbrance secured promissory notes, executed by Shutterly, amounting to the sum aforesaid, with interest as aforesaid; that among these notes was one for $860, bearing date August 9, 1889, payable on or before four years after date to the order of Mallette & Brownell, with interest at the rate of 6 per cent. per annum, payable semiannually, and after maturity to bear interest at the rate of 8 per cent. per annum; that thereafter said note was duly indorsed by the payees, Mallette & Brownell, and for a valuable consideration assigned to the appellee, William Fleming, who is now the holder and legal owner thereof; that said note was secured by a trust deed on said lot 7, described in the deed from Shutterly to Webster; that said deed conveying the said five lots, including lot 7, was executed and delivered by Shutterly to Webster, and accepted and recorded by him; that, in and by the said deed, Webster assumed and agreed to pay said note for $860, together with interest thereon from September 1, 1890, as part of the consideration therefor, in the following words: ‘Subject, however, to incumbrances thereon to the amount of $19,860, with the interest since September 1, 1890, which incumbrances the said party of the second part assumes and agrees to pay as a part of the abovenamed consideration;’ that there were no other incumbrances on the said lot, except said notes and trust deeds, executed by said Shutterly, amounting to $19,860; that thereby Webster became liable to pay said note for $860 to the legal holder thereof, at maturity, but failed to pay the same; that this suit is brought by William Fleming, plaintiff, to recover the amount of said note, against William E. Webster, defendant. The second count of the amended declaration alleges the same facts, and avers, in effect, that, by the assumption clause in the deed, Webster undertook and promised to pay, and became liable to pay, to William Fleming, plaintiff, the $860 note, and, not having so paid it, William Fleming brings this suit against Webster for the amount of that note; that said note sued on was part of the incumbrances assumed by Webster.

Of the three special pleas filed, the first set forth that under the deed the defendant was entitled to possession of the property, but was deprived of the same for a period of six months after the date of the deed, whereby he lost the use and occupation of the premises, and was thereby admaged $2,000. The second special plea avers that, by the terms of the deed from Shutterly to defendant, defendant was only bound to pay $19,860 of incumbrances, but was compelled to pay, and did pay, $1,000 for a special assessment upon the property, and that, having already paid more than $19,860 of incumbrances, he is not liable for said note of $860. The third special plea averred that the note for $860 was secured by trust deed on one of the lots described in the deed from Shutterly to Webster, and that subsequently thereto Webster sold and deeded this lot to George M. Reed, and that, in the deed to Reed, Reed, the grantee, assumed and agrred to pay this $860, and had paid interest on the note to plaintiff, and was accepted as the debtor, and arrangements were made with him to pay the note, of which defendant had no notice.

MAGRUDER, J. (after stating the facts).

The main contention between the parties to this litigation has reference to the manner of bringing the suit. It is claimed by the appellant that the suit should have been brought in the name of John J. Shutterly, for the use of William Fleming, and not in the name of William Fleming alone. It appears that the original praecipe and summons were entitled, ‘William Fleming vs. William E. Webster,’ and that, in the declaration as finally amended, William Fleming, plaintiff, complained of William E. Webster, defendant. But the clerk, in entering up the judgment, entered it under the title of ‘John J. Shutterly, for the use of Fleming,’ instead of entering it in the name of Fleming alone. Counsel for appellant say in their brief: ‘From an examination of the pleadings and history of this case, * * * it seems perfectly apparent that the attorneys on both sides, and the trial court, pleaded and tried this case, from the time defendant's demurrer was sustained to plaintiff's original declaration down to the entry of the judgment, as a case wherein William Fleming was the sole plaintiff, suing in his own name and in his own right. This being so, the entry of the judgment by the clerk of the trial court in favor of ‘John J. Shutterly, for the use,’ etc., was unauthorized, and simply a mistake of the clerk.'

Was the suit properly brought in the name of William Fleming? Shutterly had mortgaged the property to secure notes payable to the order of Mallette & Brownell, and subsequently sold the property to the appellant, Webster. In the warranty deed executed by Shutterly to Webster, Webster assumed and agreed to pay the incumbrances upon the five lots, among which was the note and trust deed for $860 upon lot 7. When a mortgagor thus executes a deed, by the terms of which the grantee in the deed assumes and agrees to pay an outstanding incumbrance, and where such grantee accepts a deed with such assumption clause in it, can a mortgagee in his own name sue the grantee in an action at law, or must the suit, if at law, be brought in the name of the mortgagor for the use of the mortgagee against such grantee?

It is well settled that, where one person enters into a simple contract with another for the benefit of a third person, such third person may maintain an action for the breach, and such a contract is not within the statute of frauds. In line with this principle, we have held that, ‘where a person becomes the purchaser of real estate by deed, which, at the time, is incumbered by mortgage, and in the deed conveying the property it is stipulated and agreed that the purchaser assumes and agrees to pay the mortgage as a part of the consideration, the contract creates a personal liability on the purchaser in favor of the holder of the mortgage, which may be enforced in an appropriate action.’ Thompson v. Dearborn, 107 Ill. 87, and cases there cited. In Dean v. Walker, Id. 540, where the action was assumpsit, brought by one of the grantees from the original mortgagor for the use of the mortgagees against the subsequent grantee, whose deed contained such an assumption clause as is above set forth, the court said (page 544): ‘The law may be regarded as well settled, where A. has given a mortgage on a tract of land to B., and subsequently conveys to C., the deed containing a contract that C. assumes the mortgage and agrees to pay the same, that B. may compel the grantee to pay the mortgage indebtedness, either by a suit at law or by a bill in equity foreclosing the mortgage, and obtain a personal decree against the mortgagor and the purchaser of the mortgaged premises for any deficiency. * * * No reason is perceived which will prevent the mortgagee, for whose benefit the clause in the deed is inserted, from maintaining an action upon such...