The first contention of the plaintiff in error is, that by reason of the transactions stated in the bill of exceptions, Walker became the principal debtor of May, and Shepherd became his surety, and as May, upon a valid contract with Walker, extended the time for the payment of the note without the consent of Shepherd, the latter was thereby discharged. The plaintiff in error sought upon the trial to give effect to this contention by asking the court to direct the jury to render a verdict in his favor. The court having refused to do this, the refusal is now assigned for error.
We have under this assignment of error to decide whether, by the mere conveyance of the premises in question to Walker by Shepherd, subject to the incumbrance created by the deed of trust, Walker became bound to May as principal debtor, and Shepherd became his surety. We are of opinion that the conveyance of the premises to Walker did not subject him to any liability to May whatever. To raise such a liability as is contended for by Shepherd, there must be words in the deed of conveyance from which, by fair import, an agreement to pay the debt can be inferred. This was expressly held in Elliott v. Sackett, 108 U.S. 132; S.C.. 2 Sup. Ct. Rep. 375, where Mr. Justice BLATCHFORD, in delivering the judgment of this court, said: 'An agreement merely to take land, subject to a specified incumbrance, is not an agreement to assume and pay the incumbrance. The grantee of an equity of redemption, without words in the grant importing in some form that he assumes the payment, does not bind himself personally to pay the debt There must be words importing that he will pay the debt to make him personally liable.' To the same effect see Belmont v. Coman, 22 N. Y. 438; Fiske v. Tolman, 124 Mass. 254; Hoy v. Bramhall, 19 N. J. Eq. 78; Fowler v. Fay, 62 Ill. 375. There are no such words in the deed made by the plaintiff in error to Walker.
Neither is there any other sufficient evidence of any agreement between Walker and Shepherd, whereby the former undertook to pay the debt of the latter to May. The remark made by Walker to May, when he asked to have the time for the payment of the note extended, that 'he had it to pay,' falls far short of showing any such agreement. As he had bought the property, subject to the incumbrance of the deed of trust for the consideration of $30,000, which, as appears by the deed to him, he had paid to Shepherd, he might well say that he had the incumbrance to pay without admitting or meaning that he had become personally liable to Shepherd to pay it. His words may be fairly construed to mean that he had the incumbrance to pay or would have to lose the property on which he had already paid $30,000 of the purchase money. But, even if Walker had said to May that he was liable for the debt, his admission would not have been binding on May so as to establish the fact without other proof. And if Walker had expressly promised May to pay the debt, that would not, without the assent of May, have converted Shepherd from a principal debtor into a surety merely. Cucullu v. Hernandez, 103 U.S. 105; Rey v. Simpson, 22 How. 341. The only way in which Walker could become the principal debtor of May, and Shepherd the surety, was by the mutual agreement of all three. There is no proof of any such agreement. It follows that, as the relation of principal and surety did not exist between Walker and Shepherd, the latter was not discharged from his liability to May by the contract of May with Walker to extend the time for the payment of the money due on Shepherd's note. But, even if it had been shown that Shepherd had become the surety of Walker, it was incumbent on the former to show as a part of his defense that the indulgence given by May to Walker was without his assent. Sprigg v. Bank of Mount Pleasant, 14 Pet. 201; Bangs v. Strong, 7 Hill, 250; S.C.. 42 Amer. Dec. 64; Cox v. Mobile, etc., R. Co., 37 Ala. 323. There was no proof of want of assent. The defense therefore failed.
It is next contended by the plaintiff in error that May is estopped to deny that the note sued on is not paid in full, because the deed of conveyance made to him by the trustees recites that the property was sold to him in accordance with the terms of the deed of trust, and the deed of trust declared that the terms of sale should be the amount due on the note of Shepherd, and the expenses of sale, in cash, and the balance on a credit of 12 and 18 months. This contention is based on the theory that the clause of the deed of trust executed by Shepherd prescribing the terms of sale, and which merely showed his expectation that the property would bring, at least, the amount of the note and expenses of sale, estopped May from denying that the property would, and actually did, bring that amount. There is no estoppel. The proposition amounts to this, that when a mortgagor represents to his mortgagee that the property mortgaged is sufficient security for the debt, and the mortgagee, relying upon the representation, accepts the security, and it turns out that the proceeds of the mortgaged property are insufficient to pay the debt, he is estopped to deny that his debt is paid. The statement of the proposition is its answer. The authorities referred to upon this contention [1] by counsel for Shepherd are cited to sustain the proposition, that a person who accepts a deed of conveyance is estopped to deny recitals therein contained. But as there is no recital in the deed that May had agreed that the property should bring a sum sufficient to pay his note, he is not estopped to deny that the note is paid. Judgment affirmed.
Assumption of Mortgage.
A person, by accepting a conveyance of property subject to a mortgage, and promising to pay it, becomes personally liable for the debt, Smith v. Unger, 5 N. W. Rep. 1069; see Schley v. Fryer, 2 N. E. Rep. 280; Hancock v. Fleming, 3 N. E. Rep. 254; and may be sued upon default of such payment by the holder of such mortgage;
Notes edit
- ↑ Fitch v. Baldwin, 17 Johns. 161; Freeman v. Auld, 44 N. Y. 50; Dundas v. Hitchcock, 12 How. 256. v. Auld, 44 N. Y. 50; Dundas v. Hitchcock, 12 How. 256.
Page 512-Continued.
or, if he be made a party to the suit to foreclose such mortgage, a judgment may be rendered against him for a deficiency which may remain after applying the proceeds of a sale of the mortgaged premises to the extinguishment of the mortgage debt, Cooper v. Foss, 19 N. W. Rep. 506; see Palmeter v. Carey, 21 N. W. Rep. 793; and is estopped, on proceedings in foreclosure, to deny that the mortgagor had a mortgageable interest. Bond v. Dolby, 23 N. W. Rep. 351. But where he simply takes the land subject to the mortgage, he will not be personally liable for the payment thereof, Hancock v. Fleming, 3 N. E. Rep. 254; but in either instance he takes the land charged with the debt, and cannot be allowed to set up any defense to its validity. Id.
A written contract for the conveyance of land cannot be varied by parol to show that the consideration and agreement were different from that stated therein, and that the vendee assumed the payment of a mortgage as part of the consideration. Lewis v. Day, 5 N. W. Rep. 753. But where, in a recorded deed subject to a mortgage, an agreement of the grantee to assume and pay is inserted by mistake of the scrivener, and against the intentions of the parties, and on the discovery of the mistake the grantor releases the grantee from all liability under the agreement, a court of equity will not enforce the agreement at the suit of one who, in ignorance of the agreement, and before the execution of the release, purchased the notes secured by the mortgage, although the grantee, after the deed of conveyance to him, paid interest accruing on the notes. Drury v. Hayden, 4 Sup. Ct. Rep. 405.
The passing of a deed, containing a clause by which the grantee assumes the grantor's bond and mortgage on the land conveyed, puts the grantor in the position of the grantee's surety for the payment of the obligation. Fairchild v. Lynch, 2 N. E. Rep. 20. See Iowa L. & T. Co. v. Mowery, 24 N. W. Rep. 747. And where the mortgage assumed covers more land than that purchased by the person assuming to pay the same, the property purchased by him must first be exhausted on foreclosure proceedings. Id.
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