115 Neb. 88 | Neb. | 1926
The only question involved in this appeal is whether the defendant, Willow Grove Land & Cattle Company, hereinafter called the cattle company, is liable for the payment of a certain mortgage held by James F. O’Donnell by reason of an assumption clause in a deed in which the cattle company is grantee.
The judgment of the trial court was to the effect that the cattle company was liable for any deficiency which might exist in the payment of the O’Donnell mortgage, after the sale of the mortgaged premises.
The action was originally brought by the Peters Trust Company against Joseph D. Miskimins et al. to foreclose a
On July 7, 1919, Ferrin and wife conveyed by warranty deed the land in question to the cattle company. This deed contained a clause as follows: “Subject to a mortgage of $28,000 given the Peters Trust Company, also a second mortgage of $22,000 to Elizabeth Miskimins and Joseph D. Miskimins and which the said Willow Grove Land & Cattle Company hereby assumes and agrees to pay together with the interest thereon from July 7, 1919.” It is without dispute that the term $22,000 should have read $23,000. O’Donnell filed a cross-petition alleging ownership of the two notes for $11,500 each, together with the mortgage securing the same, and alleged facts which entitled him to foreclose his mortgage. He also set out the deed from Ferrin to the cattle company and prayed for a foreclosure of his mortgage, and if upon the sale of the mortgaged premises there was a deficiency, that judgment be rendered against the cattle company for the amount thereof by reason of the assumption clause in the deed.
The cattle company, in answer to O’Donnell’s cross-petition, admitted that it was the owner of the title to the land; admitted that its deed contained the assumption clause as set forth in the cross-petition, but denied that it
The case before us is one in equity, and under our statute requires us to try the case de novo upon the evidence presented in the bill of exceptions and to reach an independent ■conclusion without reference to the conclusion of the district court.
It will be observed that O’Donnell purchased the notes and received an assignment of the mortgage securing the same several months before the execution of the deed from Ferrin to the cattle company. Under the circumstances, therefore, it could not be said that O’Donnell relied upon the assumption clause in the deed in purchasing the notes and mortgages. In Hare v. Murphy, 60 Neb. 185, the purchaser of the mortgage debt had relied upon an assumption clause in a deed which had been duly recorded.. The court held: “An agreement to pay a debt, although evidenced by a recorded instrument, is not conclusive in favor of a party who, in purchasing a lien against property, has acted on the faith of the record,” and that “The grantee in a deed ■containing an assumption clause is not estopped from denying the validity of the contract of assumption as against a party who, relying on the recital in the instrument as spread upon the public records, purchased the debt secured by a mortgage on the land.” Upon the authority of the above case, it seems clear that a recital in a deed whereby the grantee agrees to pay a mortgage is no essential part of the deed of conveyance, and such recital may be disputed by parol evidence.
The scrivener who prepared the deed testified that the parties came in and had the deal all worked out and a memorandum of the transaction, “and in this transaction there were mortgages against the Ferrin ranch, a first mortgage to the Peters Trust Company for $28,000 and a second mortgage of $22,000 or $23,000 to Mrs. Miskimins. So they1 wanted to transfer that land to Kreycek subject to these mortgages.” Kreycek was an officer of the cattle company. Witness further testified: “In the agreement there as I understood it, they were to take over their equity in the ranch. Q. In the Ferrin ranch? A. In the Ferrin ranch. And they left the matter of drawing up these papers all to me. * * * So this clause was simply a form I had always used in transactions of that kind where owners of land were transferring title where there were mortgages on them, and I just simply included that in it.” He further testified that Ferrin was to pay the interest up to July 7, 1919, but not afterwards.
James S. Kreycek, who represented the cattle company in the deal, testified that it was no part of the consideration of the agreement that the cattle company was to assume or agree to pay either of these mortgages. He testified: “We were.simply to take them subject to the mortgages.” Fer
Every one who was a witness in the case and cognizant of the details of the transaction seems to agree that the cattle company took the land subject to the mortgages, but did not assume and agree to pay them or either of them. Counsel for O’Donnell strongly urged that certain letters written by the cattle company indicate an intention on the part of the cattle company to pay the mortgage debt, and argue that these letters are corroborative of the assumption clause in the deed. It is true that the cattle company paid the interest on the O’Donnell mortgage, paid the taxes on the land, and probably intended to ultimately pay the two mortgages and save to itself the ranch property. To retain possession of the property, it was necessary probably that it pay the taxes and interest on the mortgages. The cattle company even wrote a letter to O’Donnell asking how much discount he would accept in settlement of his mortgage; but, as the cattle company had in mind a settlement of about 50 per cent, of the debt, the negotiations ceased. The conduct of the cattle company in regard to the pay
After reviewing the entire record and giving due weight to the assumption clause in the deed and the conduct of the cattle company, we are quite convinced that the cattle company never in fact assumed and agreed to pay the O’Donnell mortgage. We think the district court was wrong in holding the cattle company liable to O’Donnell for any deficiency which might arise after the sale of the mortgaged premises. The judgment of the district court is reversed and the cause remanded, with directions to so modify the judgment that the cattle company will not be held liable for the payment of any part of the mortgage debt.
Reversed. •