58 P. 1099 | Or. | 1899
delivered the opinion.
This is a suit to foreclose a mortgage, and the only question presented by the record is one of fact — whether the defendant Henry Hamilton assumed, by verbal promise, the payment of the mortgage in question as a part consideration of the purchase price of the premises covered thereby. On March 26, 1895, Simon S. Markham, and Cynthia, his wife, conveyed the premises to Thomas Madi
It seems to be conceded that a verbal promise by a purchaser to assume and pay a mortgage upon the premises conveyed is valid, and is susceptible of enforcement in equity, not only by the grantor, but by the holder of the mortgage, and that a personal recovery may be had against the grantee. We will take it for granted, therefore, in so far as this case is concerned, that the law is as the parties have conceded it to be. We may go, then, to the question of fact.
Prior to the execution of the deed to Hamilton, Rode had executed and delivered to Madigan a deed to his interest in the premises, which Rode says was given clear of all incumbrances. But this deed had not been recorded when Hamilton’s deed was executed. Rode testified, in effect, that Hamilton wanted him to sign the deed with Madigan, to save the necessity and expense of recording the deed which he had theretofore given to Madigan of his interest, and that the understanding was that, if he would sign with Madigan, he (Hamilton) would assume the mortgage. On cross-examination, when asked touching the language used by Hamilton, the witness said : “Well, he told me about he bought Tom Madigan—
The burden of proof was with the plaintiff to establish the verbal assumption and promise of Hamilton to pay the Rolston mortgage as part consideration for the purchase price of the premises, and in this it does not appear that he has succeeded. The statement of Madigan and Rhode, that Hamilton agreed to assume the payment of the Rolston mortgage when the $5 was paid, was contradicted by Hamilton. But this was not the consummation of the agreement, nor was it consummated until the time of the drawing and execution of the deed at Naylor’s office. There arises another conflict in the testimony touching the negotiations at this period. Hamilton and Naylor testified, in effect, that the idea of Hamilton’s
True, there was an effort to cast discredit upon Naylor’s testimony, but we do not give much weight to that, as Naylor’s explanation of his denial of recollection touching the details of the transaction is reasonable, and the manner of the evasion is not uncommon among business men. Besides, the attending circumstances are in harmony with Hamilton’s version of the understanding. The Markham deed contained an express stipulation, excepting the Rolston mortgage from the operation of the covenant against incumbrances, and Naylor had drawn under Hamilton’s direction, a deed containing covenants of warranty. This deed Madigan refused to execute, saying that he“wouldn’t warrant anything, ’ ’ and it was then Hamilton told him he would not be responsible for anything. Then the quitclaim was drawn and executed, which wholly omitted any mention of the assumption of the payment of the mortgage by Hamilton. This is strongly corroborative of Hamilton’s and Naylor’s version of the transaction. The Markham deed had such a stipulation, and it is reasonable to suppose that, if such was the understanding of these parties, it would have been embodied in the deed given Hamilton. We are impressed, not only that plaintiff has failed to sustain his cause by the weight of the testimony, but that, on the other hand, the preponderance