Winans v. Wilkie

• Decision Date: 01 July 1879
• Citation: 41 Mich. 264,1 N.W. 1049
• Court: Michigan Supreme Court
• Parties: EDWIN B. WINANS v. JAMES B. WILKIE ET AL.

1 N.W. 1049

41 Mich. 264

EDWIN B. WINANS v. JAMES B. WILKIE ET AL.

Supreme Court of Michigan

July 1, 1879

Mortgaged premises were sold, the grantee in the deed assuming all indebtedness on the premises. Afterwards he took an assignment of the mortgage to himself, and then assigned the mortgage to a third person. Held, that the assignment to the mortgagee operated to extinguish the debt, and that he could not thereafter assign to a third person, and give him a right to foreclose.

MARSTON, J.

Where mortgaged premises are sold, and the deed of conveyance contains a clause that the grantee assumes all indebtedness on the premises, and he afterwards takes an assignment of the mortgage to himself, and then assigns to a third party, can such third party go into a court of chancery and foreclose such mortgage? Such is the only question presented in this case.

Where the words inserted in the deed, and which it is claimed impose a legal obligation on the grantee to pay the existing incumbrances, are of doubtful meaning, or ambiguous, evidence showing the value of the premises, or the agreed consideration therefor, and whether sufficient or any part of the same was retained by the grantee for the purpose of paying the mortgage indebtedness, would be material as aids in the construction thereof. Ticknor v. Dodd, 3 Green chapter 455.

No such evidence has been introduced in this case, and while there is no express promise by the grantee to pay the existing incumbrances, yet there is sufficient to cast upon him a clear legal duty to pay the same. The words in the deed were "said party of the second part assuming all indebtedness on the same."

A person may purchase and accept a conveyance of mortgaged premises, subject to the incumbrances thereon, and incur thereby no personal responsibility. If the mortgage debt should not be paid, the grantee, upon a foreclosure sale would be in danger of losing the premises. This would be the extent of his loss. Where, however, he takes a conveyance assuming therein the incumbrances, he thereby becomes personally responsible for the debt, equally as though an express promise to pay was contained in the deed which he accepted, within the principles laid down in Crawford v Edwards, 33 Mich. 354; and Miller v. Thompson, 34 Mich. 10.

To assume an indebtedness is to take it to one's self, or be willing to bear it, and when a person so agrees, by accepting a deed of the...