43 Minn. 126 | Minn. | 1890
The plaintiff, on the 1st day of March, 1887, owned the certain town lot described in the complaint, and on that day executed a mortgage thereon to secure a certain negotiable note, with interest. A few days later the plaintiff sold and conveyed the mortgaged premises by warranty deed to one Darrow, subject to the mortgage, and thereafter, in May, 1887, Darrow conveyed the same premises by warranty deed to a corporation known as the “ Barber Supply & Exchange Company,” also subject to the mortgage; and, lastly, on the 3d day of September, the Barber Supply & Exchange Company sold and conveyed the same land to the defendant in this action. The mortgage was to run three years, and the first instalment of interest became due March 3, 1888, being a negotiable coupon interest note. There were no covenants by the grantees in the deeds to Darrow and the Barber Supply Company, respectively, to assume and pay the mortgage, but each took the land subject thereto. But the deed to the defendant contained the following provision and stipulation in respect to that mortgage and a second mortgage therein referred to, viz.: “Subject, nevertheless, to two certain mortgages, — one first mortgage, given to secure the payment of the sum of three thousand (3,000) dollars, which said second party [defendant] assumes; and one certain second mortgage, upon which there is remaining unpaid the sum of two thousand five hundred dollars, ($2,500,) which said first party agrees to pay and satisfy on or before the 3d day of March, 1888.”
The first coupon interest note, amounting to $221.94, was paid by the plaintiff as maker of the original note and mortgage, after maturity; and he now brings this action to recover of the defendant the
The assumption clause in this deed, under the circumstances of this case, does not fall within the rule in Follansbee v. Johnson, 28 Minn. 311, (9 N. W. Rep. 882,) and similar cases in this court. Here there is nothing to warrant the inference that the contract was made for the benefit of the mortgagee or the plaintiff. He was not put forward as the party to whom the consideration was to be paid, or to receive a part of it reserved in the hands of the grantee for his benefit; nor was there any debt or obligation due from the grantor which the grantee assumed to pay as part of the consideration, and thus made his own debt. Vrooman v. Turner, 69 N. Y. 280; King v. Whiteley, 10 Paige, 465.
The construction we have given to this clause in the deed in question, is, we believe, in accordance with the great weight of authority, though the courts are not agreed on the question. Thomas, Mortg. § 590, and cases; 1 Jones, Mortg. §§ 755, 760. Any other rule would, in many cases, work serious injustice.
Order reversed.