15 Colo. App. 384 | Colo. Ct. App. | 1900
Prior to the adjudication in Starbird v. Cranston, 24 Colo. 20, the liability of the grantee who assumed the payment of
In 1892, 'Robert Jones was the owner of some proporty in addition to the city of Denver, and while the owner executed to Fishel three notes aggregating $3,250 upon a certain time and upon certain terms. Subsequently Jones executed a
We decide the case as it now stands under the law of this state. Mrs. Jones conveyed this property in December to Cobb, the plaintiff in error, who was sued below to recover a deficiency. In the deed from Mrs. Jones to Cobb it was stated to be on the consideration of $12,000 the receipt whereof was confessed and acknowledged, followed by the clause reciting the existence of a mortgage of $3,250, which the grantee assumed and agreed to pay. Now under the Starbird case that was a contract on Cobb’s part to pay $3,250 and the holder of the note could sue him directly for the entire sum, or foreclosing could sue him for any deficiency which might arise, providing there was a consideration for the agreement, because this was an agreement made by Cobb with Mrs. Jones which would inure to the benefit of the holder of the notes. This liability could be enforced in an action at law, as well as in an equitable suit, and is not at all dependent on the doctrine of subrogation, but was a contractual liability and the party to whose benefit the promise inured, could maintain the action. This makes it very simple and the only matter we have to determine, is whether there was any disclosed consideration.
The appellant insists with a good deal of vigor that the assumption of the mortgage debt could be no part of the consideration because of the recital in the deed that it was for the sum of $12,000, “the receipt whereof is acknowledged and confessed.” From this language he thereupon assumes that the $12,000 was paid in cash and that $3,250 must necessarily have been outside of it, and therefore was no part
The judgment of the court below is in accord with this position and with this authority and in view of the law, the judgment should be affirmed which is accordingly done.
Affirmed.