86 Iowa 344 | Iowa | 1892
The leading issue upon this appeal is •as to the personal liability of the defendants Wilcoxen ■and Goode. The case was submitted upon an agreed ■statement of facts, which shows the following: ' On .September 20, 1886, the defendant Stiger executed the mortgage in question to the plaintiff to secure the payment of one thousand, four hundred dollars, with interest. On November 11, 1887, Stiger entered into a written contract with Wilcoxen for the exchange of the mortgaged property for certain real estate in Deuel -county, Dakota. Thát agreement recites that Stiger has sold to Wilcoxen the land in Worth county, “and .agrees to convey by warranty deed, with abstract of
We first inquire as to the liability of Wileoxen. As the contracts and deeds between him and Stiger “constitute all of the agreement or transaction” between them, we are to look to those instruments alone. The appellee contends that they show that the amount of the mortgage debt was deducted from the purchase price of the mortgaged land, and cites authorities holding that in such case the purchaser becomes personally liable for the mortgage debt. Other authorities are cited to the effect that the purchase of real property subject to a mortgage “raises upon the conscience of the grantee an implied promise to discharge the mortgage debt.” Such is not the rule in Iowa. In Aufricht v. Northrup, 20 Iowa, 61, it is said: “The sale and conveyance of a tract of land without covenants of general warranty, subject, however, to a prior mortgage, does not itself, and without further showing, amount in law to a promise by the grantee to pay such incumbrance and discharge the mortgage debt.”
The appellants contend that the only instances in which a grantee has been held liable to discharge the mortgage debt is where there is an absolute express promise on his part, as where the recitals in the deed, or an oral or written promise made at the time of the sale, shows such agreement, or “where there isa fixed consideration to be paid by the grantee, and he has by agreement retained the amount of the mortgage debt
We next inquire whether it appears from these instruments that the appellant Wilcoxen did retain the amount of the plaintiff’s mortgage from the purchase price of the Worth county land. By the written agreement Stiger sold to Wilcoxen that land, and agreed to convey it “by warranty deed, with abstract of good title to date hereof, except the certain loan mortgage thereon of one thousand, four hundred dollars with interest thereon at six per cent, from date thereof.” It further shows that in consideration thereof Wilcoxen sold and agreed to convey to Stiger certain twenty-nine lots in Wilcoxen’s addition to the town of Clear Lake, Dakota, “by warranty deed, and abstract of good title to date hereof.” There is certainly nothing in this writing from which it can be found, even by inference-, that Wilcoxen assumed the mortgage debt. By this agreement Wilcoxen was to take the mortgaged land subject to the mortgage, and give in exchange therefor the lots in Dakota; in other words, he gave the lots in Dakota for Stiger’s equity in the land. The agreed statement of facts shows that
In Tichenor v. Dodd, 4 N. J. Eq. 455, the recital in the deed was: “Subject to the payment of a certain mortgage thereon, * * * which said mortgage-, or the-amount thereof, is computed as so much of the consideration to be paid;” and the court held the grantee-liable for the mortgage. This language is different and more definite than that in the deed under consideration, and it does not appear that the consideration in that case was an exchange of properties. In Fiske v. Tolman, 124 Mass. 254, the language of the deed was: “Subject, however, to a mortgage held by the Lowell Five Cent Savings Bank of seven thousand dollars, which is a part of the above-named consideration.” The court says: “A promise to pay the mortgage debt-cannot be inferred from the acceptance of the deed, on the ground that the clause contains this reference to-the consideration. Taken by themselves, the words do not necessarily imply any obligation to be performed by the grantee. They are to be considered rather as-additional words of recital or description, showing that the whole amount of the consideration was not-
II.' It appears by the agreed statement of facts that the appellant Goode received the deed of Wilcoxen upon an express oral agreement that he (Goode)wasnot to be liable for this mortgage debt. Question is made as to the admissibility of such fact, but, as the language of the deed from Wilcoxen to Goode is the same as the deed of Stiger to Wilcoxen, except as to the amount of consideration, the same rules of law apply, and it follows from what we have said that the appellant Goode is not personally liable to the plaintiff.
III. None of the defendants were residents of Worth county when this action was begun, and the appellants moved to transfer the case to the district court of Polk county, of which county they were residents, which motions were overruled; As the view already announced fully disposes of the case as presented on this appeal favorably to the appellants, we need not determine whether or not the court erred in overruling their motions to transfer the case. Our conclusion is that the decree of the district court, in so far as it finds against the appellants personally and renders personal .judgment against them, must be reversed.