178 N.W. 426 | N.D. | 1919
In October, 1909, the defendant J. G. Keenan purchased the premises involved in this action. As purchase price, Keenan and his wife gave their note for $570 secured by mortgage upon the premises, and assumed the then existing encumbrances, which consisted of two mortgages, — one for $1,000 and one for $150. The $150 mortgage was payable in five annual instalments of $30 each. On May 6, 1910, the defendant Keenan sold the premises to the defendant W. L. Smith, for the alleged consideration, as expressed in the deed, “of 1 and other valuable consideration.” ■ It is undisputed that Smith paid Keenan $50, and that this was the only consideration which actually passed between them at the time of the transfer. Keenan, however, contends, and upon the trial he testified, that as a further consideration Smith assumed and agreed to pay the three mortgages against the land. Smith, on the other hand, denied this, and claimed that the $50 paid
The plaintiff purchased the $570 note and mortgage, which was executed by the defendants Keenan, and is the owner and holder thereof. He brought this action to foreclose such mortgage. He also asked for personal judgment against the defendant W. L. Smith, on the ground that, as a part of the consideration for the deed which Smith received from Keenan, he (Smith) agreed to pay the indebtedness secured by the mortgage. The defendants Smith appeared and answered. They averred that plaintiff’s mortgage had been extinguished by the foreclosure of the prior mortgage, and that the defendant J. B. Smith was the owner of the premises. The trial court found that the assignment of the mortgage was really taken to and for the benefit of W. L. Smith, and that such mortgage was in effect paid by him, and hence that the foreclosure proceedings and the sheriff’s deed issued thereon were null and void. The trial court also found that W. L. Smith had agreed to pay for such mortgage as a part consideration of the deed which he received from Keenan. The defendants W. L. Smith and P. D. Smith
It is undisputed that the defendant W. L. Smith paid interest on the first mortgage, taxes on the land, and two instalments on the $150 mortgage, and only $90 was paid to the holder of that mortgage at the time the assignment thereof was made. W. L. Smith, however, asserts that he paid such interest, taxes, and instalments with the understanding between himself and the holder of the first two mortgages that he (Smith) should be subrogated to the rights of the holder of such mortgages. It is undisputed that the defendant W. L. Smith negotiated for and made-all arrangements for the purchase of the $150 mortgage, but he asserts-that he did this for his wife, and that he purchased it for her. Mrs. Smith did not furnish the money, but the defendants testified that W. L. Smith was indebted to his wife, and that she gave him credit upon such indebtedness for the amount which Smith paid for such mortgage,, and also for the amounts he had paid out for interest and taxes upon the land.
The facts in the ease speak for themselves. The contention of the defendant W. L. Smith, that he obtained or retained any lien upon the land for the taxes and interest payments, is, in our opinion, so obviously without merit as to require no extended discussion. See, however, Morrison v. Morrison, 38 Iowa, 73; Hardin v. Clark, 32 S. C. 480, 11 S. E. 304; Stevens v. Church, 41 Conn. 369; Russell v. Pistor, 7 N. Y.. 171, 57 Am. Dec. 509; Lovelace v. Webb, 62 Ala. 271; Sletten v. First Nat. Bank, 37 N. D. 47, 163 N. W. 534. A careful consideration of the evidence leads us to the conclusion that the trial court was right in holding that the assignment of the $150 mortgage was in fact taken for the benefit of W. L. Smith, and that he did, in legal effect, pay and discharge such mortgage. Leaving wholly on one side whether W. L. Smith assumed and agreed to pay the mortgages, it is undisputed that he had actual knowledge of and purchased the land subject thereto. The amount of such liens was stated in the deed which he received and considered by the parties in fixing the purchase price. Hnder any theory, Smith agreed to pay $50 over and above the amount due on the-three mortgages. This principle has been held applicable even to the purchaser at a judicial sale. Thus, in Sletten v. Bank, supra, this court
Did the defendant W. L. Smith assume and agree to pay the mortgages? The positive testimony of Keenan is to the effect that he did. The trial court believed this testimony to be true, and found accordingly. There is nothing in the record before us to justify us in saying that the finding is not in accord with the preponderance of the evidence.
Nor do we believe that the court erred in denying the motion for a •new trial. Both appellants asked for a new trial on the ground of insufficiency of the evidence. So far as P. D. Smith is concerned this is the principal ground. Under the plain words of the statute, insufficiency of the evidence does not constitute a ground for a new trial in .actions tried under § 7846, Comp. Laws 1913.
The defendant W. L. Smith also asked for a.new trial of the question whether he assumed and agreed to pay the mortgages, on the ground of newly discovered evidence. Under the statute a new trial may be granted on the ground of “newly discovered evidence material to the party making the application, which he could not, with due diligence, have discovered and produced at the trial.” (Comp. Laws 1913, subd. 4, § 7660.) The proposed newly discovered evidence in this ■case is the testimony of one Olson, who claims to have been present at the time Smith purchased the land from Keenan. Olson is a resident of Bismarck, where the defendant resides and the action was tried. The defendant does not claim that the evidence could not have been discovered and produced upon the trial. On the contrary he in effect admits that he could and would have discovered and produced the evidence upon the trial if he had known that the question of his personal liability was involved. But he says that “he did not know that there was any such issue in said case.” It is difficult to understand how there can be any basis for this contention. The complaint in the case ■expressly averred that the defendant W. L. Smith, as a part of the consideration for the deed which he received from Keenan, promised and
It follows from what has been said that the judgment and order appealed from must be affirmed. It is so ordered.