Thе plaintiff brought this action to foreclose a mortgage executed by the defendants Cram and for a deficiency judgment аgainst defendants Batinovich, who were grantees of the mortgaged property under mesne conveyances from the Crаms. Judgment was entered foreclosing the mortgage, but not for any deficiency. Plaintiff appeals.
Appellant contends that the respondents Batinovich rendered themselves personally liable for the mortgage debt by reason of the fact thаt the deed, conveying the property to them, contained the following clause: “The grantee promises and agrees to have all existing mortgages on said lands and premises satisfied of record.”
The obligation of a grantee to assume аnd pay a mortgage debt need not be expressed in any particular language, but it must unequivocally show his undertaking to be answеrable for it.
Hopper v. Calhoun,
In 2 Devlin on Real Estate (3d ed.), § 1067, it is said:
“To render the grantee personally liable to pay a mortgage upon the lands embraced in his deed, it shоuld clearly appear that such was the intention of the parties. A mere statement in the deed that the *119 conveyance is made subject to such mortgage is not sufficient to fix this liability upon Mm. To effect this result, tbe deed should contain some language clearly importing that an obligation is intended to be created by one party, and is knowingly assumed by the other, such as, ‘subject tо payment of the mortgage,’ or that such mortgage ‘forms a part of the purchase money, which the grantee in the deed assumes to pay,’ or some other equivalent expression. . . . Where the words inserted in the deed, and which it is claimed impose a legal obligation on the grantee to pay the existing encumbrances, are of doubtful meaning or ambiguous, evidencе showing the value of the premises, or the agreed consideration therefor, and whether a sufficient, or any, part of thе same was retained by the grantee for the purpose of paying the mortgage indebtedness, would be material as aids in the construction thereof.”
And in
Elliott v. Sackett,
“The grantee of an equity of redemption, without words in the grant importing in some form that he assumes the рayment of a mortgage, does not bind himself personally to pay the debt. There must be words importing that he will pay the debt, to make him personally liable. ’ ’
We think that the language in the deed to Batinovich does not show a clear and unequivocal assumption of the appellant’s mortgage.
The meaning of the clause being susceptible of different interpretations, еxtraneous evidence may be resorted to in order to ascertain the intention of the parties.
Chaffee v. Hawkins,
*120 The salient facts in the case are not in dispute. Batinovich held a second mortgage on the property. In the fall of 1930, appellant threatened to foreclose its first mortgage. Jacobus, the then owner of the property, was out of the state. Batinovich, prompted by the desire to salvage something from his second mortgage, paid appellant one hundred dollars. In cоnsideration of this payment, appellant postponed foreclosure of its mortgage for the express purpоse of giving Batinovich an opportunity to turn the property and thereby realize something on his second mortgage. To that end, Jacobus, whose situation was hopeless, delivered to Batinovich the deed containing the clause in question, upon the representation by the latter that the appellant would release him (Jacobus) from personal liability on the mortgаge. It was not a sale. It was not understood by either Jacobus, Batinovich or appellant that Batinovich was to assume appellant’s mortgage. On the contrary, the documentary evidence and the testimony all go to show conclusively that Bаtinovich did not intend to assume or agree to pay appellant’s mortgage.
The deed was dated November 1, 1930, being exеcuted after the following letters had passed between Mr. Avey, attorney for Jacobus, and the appellant:
“Elma, Washington, October 27, 1930. “Peoples Savings & Loan Association,
Tacoma, Washington.
Dear Sirs: Re: Cram-Jacobus, Loan No. 1159.
“I have thе quit-claim deed in my possession now, running to your company, but Mr. Batinovich comes in and tells me that the deed should be to him or in blank, as to grantee. I have told him that you are the one I am dealing with. Kindly advise as to this.
“Tours very truly, E. S. Avey.”
*121 “Mr. Eugene S. Avey, October 27, 1930.
Elma, Wash.
Dear Sir: Re ¡Loan 1159 Cram-Jacobus
‘ ‘ Supplementing our letter of a few days agо, it will be satisfactory to us if Mr. Jacobus deeds this property in blank or to Mr. Batinovich for the reason that we are willing to have аnybody who can possibly make this property work out have a chance at it.
“Mr. Batinovich thinks that by the expenditure of sonie money he may be able to salvage something above our mortgage. Consequently whatever arrangements you make with him in thаt respect will be agreeable to us and you may assure your client that as soon as he has given such deed, we will releаse him from any deficiency we might have. This action has been authorized by our Board and you may rely upon it.
“Tours very truly,
“Peoples Savings & Loan Association.
“By Secretary.”
On November 17, Batinoviсh wrote appellant a letter which, among other things, contained the following:
“As I said to' Mr. Optgenorth, I would get the tax statemеnts and calculate the total, then if I saw it would be worthwhile to me to assume the indebtedness, I would. But after finding the total sum I have deсided that it is too large an amount for me to take over. I would rather forfeit my rights in this property.”
This documentary evidence is suрported and amplified by the testimony of Jacobus and Batinovich. Their version of the transaction is that appellant was willing to accept a deed to the property and release Jacobus from personal liability if Batinovich would release his mortgage. The manager of appellant admits that to be the case during the period covered by the foregoing correspondence. It was not until the late spring or early summer of 1931 that appellant manifested a different attitude. The change of appellant’s position *122 apparently did not occur until it learned of the clause in the Jaсobus deed, which it conceived to be an assumption of the mortgage debt by respondent.
. We think that the evidence conclusively shows that Batinovich did not assume or-agree to pay appellant’s mortgage.
The judgment is affirmed.
Beals, C. J., Tolman, Main, and Steinert, JJ., concur.