Hartsuff v. Parratt

81 Neb. 6 | Neb. | 1908

Duffie, C.

The Parratt brothers and sisters, of Avhonr there AArere seven, were the joint OAvners of lots 1 and 2, in block 8, in McCormick’s addition to the city of Omaha. The lots were incumbered by a mortgage for $6,000 held by the plaintiff, Albert Hartsuff. The Byron Reed Company, acting as agent for Hartsuff, was pressing for payment of interest due upon the mortgage, which the Parratts Avere unable to pay. In this condition of affairs, they sold the lots to Henry E. Cady, the appellant, and the deed recited that the conveyance Avas made subject to a- mortgage for $6,000 and to all accrued interest thereon, which, Avitli all taxes and assessments, the said Cady hereby assumes and agrees to pay. This deed bears date November 25, 1893. Cady conveyed the lots to Sarah M. Hendricks by deed bearing date January 2, 1894, and this deed recites that it is made subject to a $6,000 mortgage, Avhich the grantee assumes and agrees to pay as part of the consideration. In September, 1896, an action was commenced to foreclose this mortgage; Cady and Mrs. Hendricks both being made parties defendant. The petition alleged their agreement to assume and pay the mortgaged debt, and the petition asked, in addition to other relief, that if the mortgaged property did not sell for sufficient to pay the amount due upon the mortgage plaintiff might have judgment against Cady and Mrs. Hendricks for the deficiency. Cady, though personally served with summons, made default in the foreclosure proceedings, and in March, 1907, a decree of foreclosure was entered, in which the amount due on the note and mortgage was ascertained, and the court found, among other things, that the Parratts, the makers of the note and mortgage, had conveyed the premises to the defendant Cady subject to plaintiff’s mortgage, which mortgage the said Cady at the same time assumed and agreed to pay. The premises were sold, and confirmation of the sale had in October, 1902, and in August, 1904, plaintiff filed a motion for a deficiency judgment against the various defendants, and a deficiency judgment was entered against Cady and Mrs. Hendricks, from which they took error to this court. The opinion on that appeal is found in 75 Neb. 706, and it was there held that Cady was not precluded by the terms of the decree from showing, if he could, that his agreement to assume and pay this mortgage was without consideration, and the case was reversed and remanded for further proceedings on issues properly joined as to whether the assumption of the mortgage in the deed to Cady was based upon any consideration. On this opinion being handed down the plaintiff filed an amended motion for a deficiency judg-. ment against Cady, in which it is alleged that his agreement to pay the mortgage was a part of the purchase price of the lots conveyed to him. In an answer filed by Cady he alleges that he never agreed to assume and pay the mortgage, and that the clause in the deed to that effect was inserted by mistake and oversight, was without authority, and without any knowledge or consent on liis part. He further says that there was no consideration for such promise and agreement. On the trial judgment was entered for the deficiency in favor of the plaintiff and against the defendant Cady, and the case has been brought here on appeal.

There is evidence tending to show that the lots were fairly worth $12,000 at the time they were conveyed to Cady. The evidence further tends to show that the consideration agreed upon between the parties was $10,000, although the consideration named in Cady’s deed is $11,000. William Parratt, who conducted the negotiations with Sholes, the agent, who acted for Cady in the transaction, testifies that they were liable to lose the lots; that the sale was made to relieve them of liability upon the mortgage. The sisters of William Parratt, who testified upon the trial, while having no knowledge of the actual terms of the agreement, testified that they would not have signed the deed to Cady in the absence of a clause therein by which he assumed and agreed to pay the mortgaged debt; and that by this, conveyance they expected to be relieved of all responsibility in the matter. While this testimony does not go to the terms of the agreement actually made, it does show the reason for making the sale, and raises a strong presumption that the agreement finally made between William Parratt and Cady’s agent was of such a nature as to effectuate the object' which the grantors had in view in conveying the property. The Byron Reed Company was handling this mortgage as agent for the plaintiff. When Cady took his conveyance there was interest due and unpaid upon the mortgage. A. L. Reed, president of that company, testifies that in the month of November, 1903, Mr. Sholes came to see him on behalf of Mr. Cady with reference to this mortgage; that at the time he said: “I sold the Parratt property at the southwest corner of Twenty-Seventh and Farnam streets to H. F. Cady. Mr. Cady is to take care of the mortgage and interest on the property, being the debt that you represent. Would you be willing to accept from Mr. Cady a ninety-day personal note in payment of the interest now dne and delinquent?” I replied in substance that I was sorry, but that I could not do that. He said: “Mr. Cady is a responsible man,■ he• will pay the amount, and he only asks the accommodation a short time.” I replied: “I am not able to grant that.” That is the substance of the conversation. He further stated that a short time thereafter Cady himself paid the interest. Within about six weeks after taking the conveyance Cady sold the property to Mrs. Hendricks, and in that deed attempted to relieve himself of responsibility for this mortgage by requiring Mrs. Hendricks to assume and to pay the same. All the circumstances tend strongly to show that the agreement was that, in consideration of the conveyance by Parratt to Cady, and as part of the consideration therefor, Cady assumed this mortgage and agreed to pay the same. It is hardly conceivable that such a clause would be inserted in a deed of conveyance unless inserted to carry out an agreement previously made. ■

We are satisfied that the district court was right in entering a judgment for the deficiency against Cady, and recommend its affirmance.

Epperson and Good, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.