| Kan. | Jan 15, 1893
The opinion of the court was delivered by
Our attention has again been called, in a motion for a rehearing, to-the contents of the record in this case, and a careful examination of the same convinces us that the opinion heretofore handed down by Strang, C., does not declare the law upon the written covenant in the deed referred to. The name of the party who was to assume the payment of the Holcomb mortgage is omitted. It is attempted to make Thompson liable to pay $2,000, with interest thereon, on account of the written covenant in a deed of the 22d of April, 1887, executed to him by Money G. Miller and wife. The covenant reads as follows: “ Excepting note for $2,000, dated April 21, 1887, to M. C. Holcomb, with 8 per cent, interest from date, and with said mortgage for $2,000 the said -- assumes and--agrees to pay.” To create a personal liability for the payment of any prior mortgage or lien on the part of a grantee in a deed, the covenant or words used therein must clearly import that the mortgage or lien was intended to be stated by the one party, and knowingly assumed by the other party. In brief, to create a personal liability, the deed must in terms provide that the grantee assumes the mortgage or lien; otherwise, there is no personal liability. (15 Am. & Eng. Encyc. of Law, p. 832, and au
The plaintiff below declared alone upon the written covenant or contract in the deed. There is no allegation of a parol contract or agreement on the part of Thompson to assume and pay the mortgage, or that the mortgage was any part of the purchase money. Hence, his liability is to be determined by the terms of the written covenant or contract. The plaintiff states the covenant of assumption was in writing, “in words and figures following,” then quotes the alleged covenant, and follows it up by the further allegation, “that by reason of said covenant and agreement [not by reason of that and some other parol agreement] the said Enoch P. Thompson became and is liable.” The plaintiff does not allege that the parties to the deed made any mistake, mutual or otherwise, or that they intended to insert any other or different covenant than the one actually set out in the deed, to make it conform to some other agreement or understanding of the parties. Thompson’s name is not mentioned or referred to in said covenant or contract. We might assume from the covenant, as it appears in the deed, that Miller’s name ought to have been inserted in the blank which is left in the covenant as well as to assume that Thompson’s name should have been written therein. The deed reads that the consideration thereof was $4,000, duly paid to the parties of the first part; that is, Money G. Miller and wife. There is no statement or recitation in the deed that'Thompson was to pay an additional sum of $2,000. It is true that, in a deed from Thompson and wife to John J. Hoss, of October 29, 1887, Hoss assumed and agreed to pay Holcomb his mortgage of $2,000, with interest. But this is no assumption or promise by Thompson. We therefore think that it is not shown by the deed of April 22, 1887, that Thompson assumed, agreed, or in any way promised to pay, the mortgage to Holcomb of $2,000, or any part thereof.
The judgment heretofore rendered in this court upon the