7 Cal. 105 | Cal. | 1857
after stating the facts, delivered the opinion of the Court—Terry, J., concurring.
As to the remedy, we are satisfied that the case is one of chancery jurisdiction, and it is not necessary for Abell to first pay the amount of the mortgage to Humphreys, before he can bring his action against Coons and Dennison; in fact he might be unable to do so, and although primarily liable to Humphreys, still in this transaction, he is, in fact, a security for Coons and Dennison, as it is evident that he will only be liable to Humphreys in the event of non-payment by them, or the failure of the premises to bring the amount of the mortgage-debt.
The first question which naturally suggests itself, is as to the character of the clause in the deeds above quoted. It is to be observed that the mortgage by Abell, (he and Stevens holding as joint-tenants) only extended to the undivided one-half of the premises. It is now contended that this clause extended the mortgage to the whole premises, and that all the lands became charged, and if such is not the legal effect, that it amounts to an undertaking upon the part of the grantees to assume the debt of eight thousand dollars, as a portion of the purchase-money, and that the vendors have a lien on the whole premises, for the amount unpaid.
The words of the deed “ assume the payment of the mortgage now existing on the premises,” can by no just rule be said to extend the terms, but rather to define and limit the extent of the mortgage. What was the mortgage then existing on the premises ? It was a mortgage of the undivided one-half interest of Abell, and this they assumed.
Let is next inquire, whether the covenant can be considered as raising a vendor’s lien. It will be borne in mind that both deeds, that of two-thirds to Coons, and the remaining one-third to Dennison, contain this provision. Now, can it reasonably be supposed that Dennison, who purchased on the same day with Coons, a one-tliird interest, for which he paid eight thousand dollars, undertook to pay the further sum of eight thousand dollars when the remaining two-thirds were sold for sixteen thousand dollars, with the contingent charge of eight thousand more. This would make Dennison’s interest, in the event he had to pay the mortgage, cost sixteen thousand dollars; while Coons’ two-thirds could not cost in any event more than twenty-four thou
The fact that this provision was inserted in both deeds, and that it would work unequally and unjustly in the two cases, if the construction contended for was maintained, is a strong circumstance tending to raise the presumption that the clause was simply designed as a recognition of the mortgage, and not as an individual assumption by each vendee. In this connection it might he asked, if it were an undertaking to pay the eight thousand dollars as part of the purchase-money, whether Coons or Dennison was primarily liable, or could both he compelled to pay the mortgage ?
From the foregoing conclusions, we are of opinion that the mortgage from Abell to Humphreys is a charge only upon an undivided half interest of said premises, and the Court below is ordered to modify its decree in conformity with this opinion.
