Aufricht v. Northrup

20 Iowa 61 | Iowa | 1865

Cole, J.

1. COISfVEYASaSi:°ex-e‘ ception. The sale and conveyance of the tract of land, with covenants of general warranty, subject, however, to a prior mortgage, does not of itself, and ’ L 001 . without further showing, amount, m law, to a prorjiise by the grantee to pay off such incumbrance and discharge the mortgage debt. Johnson v. Monell, 13 Iowa, 300.

If the conveyance had been -not only subject to the mortgage, but to the payment of it, or to the performance of its conditions or the like, the rule might be different. Burnett v. Lynch, 5 Barn. & Cress., 589; Stewart v. Wolveridge, 9 Bing., 60; 8 Dowl. & Ryl., 368; Goodwin v. Gilbert, 9 Mass., 510; Felch v. Taylor, 13 Pick., 133 (but see, contra, Woolveridge v. Stewart, 3 M. & Scott, 561, or where it appears that the amount of the incumbrance is deducted ffom the agreed price of the property); Townsend v. Ward, 27 Conn., 610; Ferris v. Crawford, 2 Denio, 575; Thompson, adm'r, v. Thompson, 4 Ohio, 333; McMahon v. Stewart, 23 Ind., 590.

If none of these matters, however, appear.upon the face of the deed, and there was, in fact, a promise to pay the mortgage debt in part consideration for the conveyance of the property, such promise, when properly set forth in the petition, might be made the foundation of an action. The consideration named in the deed does not preclude a party to it from showing, by parol, what the real consideration was. 1 Greenl. on Ev., § 26, and note and authorities cited, and §§ 285, 304; Scrafford v. Whipple, 3 G. Greene; 261, and authorities cited; McMahon v. Stewart, 23 Ind., 590.

But the petition in this ease is based solely upon the assumed promise resulting from the written exception or limitation in the covenant of warranty, and therefore the demurrer was rightfully sustained.

Affirmed.