48 Conn. 224 | Conn. | 1880
The defendant having a claim of nearly two thousand dollars against one Mead, took a deed, absolute in form but intended as a mortgage, of certain real estate, which was a part of a larger tract of land, all of which was subject to three prior mortgages. The contract .between the parties was, that Mead should procure the third mortgagee to release to him the portion mortgaged to the
The building on the premises was used as a plow-manufactory. The contract further provided that the personal property therein contained, consisting of stock, tools, manufactured goods, etc., should also be conveyed to the defendant.
A defeasance executed on the same day provided that the defendant, his own debt being first paid, would at any time within three years, at Mead’s request, reconvey the land, tools, etc., to Mead. The defendant leased the mortgaged premises to Mead, who continued in possession carrying on business as before. The deed and the lease were recorded; the defeasance was not recorded.
The defendants’ claim, excepting about four hundred dollars, was paid, when the buildings were destroyed by fire. Soon after the note described in the declaration was presented to the defendant and payment demanded, which was refused. Thereupon this suit was brought. A few days afterwards the defendant, without any request from Mead, executed and tendered a re-conveyance of the premises to him, but he declined to accept it. The defendant then caused the deed to be recorded.
The buildings were uninsured, and the land is now worth no more than the first mortgage.
The Superior Court having rendered judgment for the plaintiffs, the defendant filed a motion for a new trial.
The question presented by the motion is, whether the defendant’s promise to Mead to pay the amount of the prior mortgages can be enforced.
The authorities substantially agree that when one pur
The mortgagee may also sustain an action whenever the circumstances are such as to justify the conclusion that the promise was made for his benefit.
Where however the conveyance in which the grantee assumes a prior mortgage is itself a mortgage, the case -is somewhat different, and the obligation may be materially modified or abrogated altogether by subsequent events. In such a case, the grantee owes the grantor no debt which he can promise-to pay to a prior mortgagee, and if he makes such a promise it is ordinarily a mere agreement to advance money to pay the prior mortgage, or rather an agreement with the mortgagor to purchase it. In such cases there is little room for the conclusion that the promise was made for the benefit of the prior mortgagee. It is simply a transaction between the immediate parties. To what extent such a contract may be enforced must depend upon the circumstances of the case.
The question whether the promisee, Mead, his mortgage to the defendant being still outstanding, can enforce the promise, is another form of stating the question involved in this case. After the last mortgage is satisfied and discharged, it seems quite clear, both upon principle and authority, that, in an ordinary case the promise is canceled, and cannot be enforced by any one. Presumptively that is the intention of the parties, unless there is something in the case showing a contrary intention. In the present case Northrop, the third mortgagee, had, upon a valuable consideration, acquired certain rights which, it would seem, could not be affected by a discharge of the mortgage by the mortgagor, but as those
These authorities show that such a promise contained in a mere mortgage imposes upon the promisor no absolute continuing obligation which can be enforced by the prior mortgagee. They do not however touch the question whether he may not acquire and enforce the rights of the mortgagor in the promise.
Assuming the law to be as stated in the cases cited, how does it affect the present case ? Erom what has already been said it is obvious that the obligation would not continue after the mortgage containing the promise had been satisfied and the property re-conveyed to the mortgagor. That had been done in the case of Garnsey v. Rogers, supra, although the decision does not rest on that ground.
In the present case, at least so far as this question is concerned, we must regard the mortgage to the defendant as still outstanding. Eour hundred dollars of the debt remained unpaid. Mead had not called for a re-conveyance under the defeasance, and indeed had no right to call for it. It can hardly be regarded as the privilege of the defendant to discharge the mortgage at his pleasure, and thereby relieve himself of his obligation against the wishes of Mead. Mead had an interest in having the prior mortgages paid ; he had for a valuable consideration contracted with the defendant to pay them, and had placed in his hands sufficient property to indemnify him therefor. That property, without his fault we must presume, had been reduced in value so that it was insufficient for that purpose. The defendant having failed to protect himself by insurance was not in a condition to insist that the loss should fall upon Mead. Mead therefore might well refuse to accept the re-conveyance; and having done so, the relation of mortgagor and mortgagee between himself and the defendant still exists and the defendant’s promise still remains in force.
Moreover, one of the plaintiffs, before purchasing the Per-. kins note, had an interview with the defendant respecting his liability to pay the same. The defendant, with full knowledge that the plaintiffs were negotiating for it, told him that he had bought the property and “ had assumed and agreed to pay the Perkins note, as his deed would show,” and that “ it showed what he considered the property worth when he had paid on it or it had cost him some $1,800 more than the mortgages.” This conversation was reported to the other plaintiffs ; and relying mainly on Bradley’s liability 'to pay the Perkins note they purchased it. Now, upon the .theory of the defense that there was no subsisting valid ■promise to pay the note, his declaration is a misrepresentation, which having been acted upon amounts to an equitable ¡estoppel. If it was true, as he stated, that he had agreed to pay the note, then there was a valid promise at that time which Mead could enforce, and that obligation not having ¡been discharged, he is still liable.
And this brings us to a more important distinction between 'this case and the case of Garnsey v. Rogers. In that case the prior mortgagee, having foreclosed and sold the property, and the avails being insufficient to pay his demand, sought to make the subsequent mortgagee liable for the deficiency on his promise to assume, and that after the mortgagor, to
We conclude, then, that the plaintiffs, standing in the place and having the rights of Mead, are entitled to maintain this action, and that a new trial must be denied.
In this opinion the other judges concurred.