95 P. 121 | Ariz. | 1908
Lead Opinion
This case was originally presented last term, and is now before us on rehearing. The opinion in the case in 11 Ariz. 141, 89 Pac. 517, gives a full statement of the facts, and our consideration of the errors assigned, to which reference is here made. The statement there made satisfactorily presents the facts, with the exception of our statement of the answer of the plaintiff to the cross-complaint, on which the ease was tried. In the confused state of the record we failed to note
In the case of Locke v. Homer, 131 Mass. 109, 41 Am. Rep. 199, also cited, the deed conveyed the premises “free from encumbrances, except a mortgage to Margaret Aitken of four thousand dollars, which the grántee assumes and agrees to hold the grantors harmless from.” In Cobb v. Fishel, 15 Colo. App. 384, 62 Pac. 625, the deed from Jones to Cobb stated the consideration to be $12,000, the receipt whereof was acknowledged, followed by a clause reciting the existence of a mortgage of $3,250, which the grantee assumed and agreed to pay. It was there held that “this was an agreement made by Cobb with Jones, which would inure to the benefit of the holder of the notes. This liability could be enforced in an action at law, as well as in an equitable suit, and is not at all dependent upon the doctrine of subrogation, but was a contractual liability, and the party to whose benefit the promise inured could maintain the action. ’ ’ In the case of Americmi W. W. Co. v. Farmers’ L. & T. Co., 73 Fed. 962, 20 C. C. A. 138, the deed by which the property was conveyed by the Illinois company to the New Jersey company described the outstanding encumbrances existing thereon, to wit: “The
It is not contended by the appellee in this case that the conveyance of the land by the mortgagor to Watrous by a deed warranting against encumbrances, without making it subject to this mortgage, would operate to release the land from any valid lien of such mortgage, but the contention is that such transfer from the mortgagor, and the acceptance of a deed from such grantee by the present owner containing only an assumption clause relieving such grantee from the warranty of title, and assuming all mortgage and other liens standing against the property, obligated the present owner to pay all valid liens against the same, but does not estop her from de
"We hold that the clause inserted in the deed from Watrous being general in its nature, and not describing or referring to this mortgage, only obligating the grantee to assume all liens and encumbrances that stand against the property, may be understood to refer to valid liens, and does not estop her from defending against a void mortgage. We are strengthened in this view of the case by the fact that there were at the time of .the transfer valid mortgage and other liens standing against the property, and the further fact that the presumption that Goodwin intended to assume this mortgage, or received from Watrous a consideration for such assumption, is negatived by the facts pleaded in her verified answer, and which we are warranted by the verdict of the jury and the findings of the court in presuming were sustained by evidence. The assumption clause in the Watrous deed under the facts in this case does not constitute such a contract with Watrous
The judgment of the lower court is affirmed.
Concurrence Opinion
When we considered this case at the last term I briefly expressed my views. Upon the more extended consideration which the case has received at this term, I find no reason to change my opinion as then expressed. I therefore concur in the conclusion arrived at by DOAN, J. •
Dissenting Opinion
I adhere to the views expressed by me in the opinion filed upon the former hearing, and therefore dissent.
The CHIEF JUSTICE, deeming himself disqualified, took no part in the determination of this case.