85 Mo. App. 449 | Mo. Ct. App. | 1900
— This is a suit by a mortgagee against the purchaser from the mortgagor for the balance of the mortgage debt left unpaid after foreclosure of the mortgage — the basis of the action being that said purchaser had assumed and agreed to pay the mortgage debt. At the close of the evidence the court gave a peremptory instruction for defendants, and from a verdict and judgment in accordance therewith plaintiff appealed. ,
The record discloses about this state of facts. In March, 1893, one Boltz owned a lot in the town of Gorin, Scotland county, Missouri, on which he had borrowed $418 from plaintiff, giving his note due in three years and executing a mortgage or deed of trust on the real estate to secure the debt. Shortly thereafter Boltz sold and conveyed the lot to the defendants for an expressed consideration of $700. In the warranty clause of the deed Boltz covenanted and agreed with defendant “that the said premises are free and clear of any incumbrance done or suffered by him, or those under whom he claims, except a mortgage to Chas. Keifer for $]/.! 8,” and that he would “warrant and defend the title to the said premises * * * forever against the lawful claims and demands of all persons whomsoever except as above provided.”
' The evidence shows that defendants paid the interest as it matured on the mortgage from time to time, but refused to pay the principal debt at maturity. Plaintiff thereupon foreclosed the mortgage or deed of trust; the lot was sold, but failing to bring the full amount of the debt the plaintiff
I. On a close inspection of the record we feel bound to sustain the ruling of the trial court. The law in such cases is well settled. If the grantee shall, at the time he purchase the real estate, 'agree with the grantor that as part of the purchase price he, the grantee, will pay the mortgage debt encumbering the land, then the holder of the mortgage claim may sue on this obligation and enforce payment against the grantee. This liability of the grantee rests upon the familiar doctrine that where one person makes a promise to another for the benefit of a third person, then such third person may maintain an action upon such promise. This agreement however by the grantee to pay off and discharge the mortgage debt made and created by hi§ grantor, must be clearly established, either by a recitation in the deed accepted at the time or by a contemporaneous obligation then entered into. Merely taking a conveyance subject to the mortgage will not bind the grantee. Without an expiress agreement entered into on purchase of the mortgaged real estate no liability exists. Taking the land “subject” to a mortgage will be regarded as merely restrictive of the covenants of warranty made by the grantor. Walker v. Goodsill, 54 Mo. App. 631; Ins. Co. v. Irwin, 67 Mo. App. 90, and authorities cited; Hall v. Morgan, 79 Mo. 47; 1 Jones on Mortg. (4 Ed.), sec. 748.
The latter author says: “A personal liability on the part of the grantee to pay a mortgage can not be implied from a statement that the conveyance is subject to the mortgage, the amount of which forms part of the consideration and is deducted therefrom.”
We have here in the deed made by Boltz to those defendants nothing more than a qualification of the covenant of warranty — excepting therefrom the mortgage in question.