27 Neb. 836 | Neb. | 1889
This action was brought by defendant in error against James M. Miller, Emma Miller, John B. Xeedle, John W. Harris, A. R. Hoagland, and A. Neith, upon a promissory note executed and delivered on .the 12th day of March, 1888, by James M. Miller and Emma Miller, to A. W. Agee and ¥m. J. Stevenson, for the sum of $648, due eight months after date, with interest at the rate of ten per. cent per annum from date until paid.
At the time of the execution and delivery of said note, defendants Miller and Miller, to secure the payment of said note, executed and delivered to Agee & Stevenson a mortgage upon certain real estate in the city of Brownville, Ne
“Afterwards the said John B. Keedle and his wife, Mary R. Keedle, sold said premises to the defendant, John W. Harris, and the said John W. Harris, as a part of the consideration for said premises, assumed and agreed to pay the note and mortgage hereinbefore described, with interest thereon, and by direction of the said John W. Harris the said John B. Keedle, and his wife, Mary R. Keedle, made, executed, and delivered to the said A. R. Hoagland a deed of conveyance, which contained the following provision, to-wit: ‘And we do hereby covenant with the said A. R. Hoagland, and his heirs and assigns, that we are lawfully seized of said premises; that they are free from incumbrance except a mortgage of $648 and interest thereon from March 12, 1888, and the grantee assumes and agrees to pay said
“Plaintiff further alleges that afterward the said John W. Harris sold said premises to the defendant A. Veith, and caused a deed of conveyance of the same to be duly executed and delivered to said A. Veith by the said A. R. Hoagland, which said deed of conveyance was duly witnessed and acknowledged, and in consideration of such deed of conveyance, and as part of the consideration for said premises, the said A. Veith expressly assumed and agreed to pay the note and mortgage hereinbefore described.
“The plaintiff says that said A. Veith has retained said deed of conveyance and claims to be the owner in fee simple of said property, but has never caused his deed of conveyance to be recorded in said Nemaha county.”
In Cooper v. Foss, 15 Neb., 515, it was held that the purchaser of mortgaged property, who, as a whole or-part consideration for such purchase, agrees to pay off the mortgage, may be sued upon default of such payment by a holder of the mortgage, and in case there was a deficiency after applying the mortgaged property to the payment of the debt, he would be liable for such deficiency. That case was decided after a full examination and consideration of all the reported decisions for and against the proposition. The rule thus adopted, in our view, is the correct one. A mortgagor sells the mortgaged premises to a third party
It is probable tnat different grantors are liable in their order as sureties for the person last assuming the debt, but we need not determine that question.
Where a party purchases mortgaged property and assumes the mortgage debt, it is of the utmost importance to him that payments made on the debt be applied in satisfaction thereof. Payments might not be so applied if made to the mortgagor instead of the mortgagee.
The plaintiff in error admits that in an action in equity to foreclose the mortgage the right of the plaintiff below to maintain the action would be perfect, but it is contended that a different rule prevails in an action at law. Cases
It is evident that the petition states a cause of action and the judgment in favor of the plaintiff below is right and is affirmed.
«Judgment affirmed.