| Ill. | Mar 29, 1883
delivered the opinion of the Court:
The default of William Thompson, plaintiff in error, admitted such facts as were properly alleged in the bill, but the default admitted nothing more. The, important question presented by the record then is, whether the allegation contained in the bill is sufficient to authorize the money decree which the court rendered against him for $3168.67. The allegation in the bill which is relied upon, is as follows: “Your orators further show unto your honor, that after the making of said notes by said Funk, the making of said deed of trust by said Funk and wife, and the recording of the same, to-wit, on the 20th day of February, A. D. 1877, said Absalom C. Funk and Chloe E. Funk, by their deed of that date, under their hands and seals, duly acknowledged according to the law of the State of Illinois, sold and conveyed all the premises described in said trust deed to one William Thompson, and in and by said deed the said William Thompson assumed payment of said trust deed, and covenanted and agreed to pay the same as part of the consideration or purchase money, to said Funk and wife, for said land, which said deed is recorded in the recorder’s office of Mason county, Illinois, in book ‘S,’ page 240, a copy of which deed is herewith filed, marked ‘Exhibit C,’ and made a part of this bill.”
It is contended by defendants in error that the language, “sold and conveyed” by deed, under hand and seal, and duly acknowledged, etc., was a sufficient averment to show that the deed was valid, and binding upon both parties to the instrument, in every particular; while, on the other hand, it is contended that the allegation is insufficient to establish a personal liability upon Thompson, the grantee in the deed, to pay the mortgage indebtedness on the premises.
The deed purported to convey five hundred and sixty acres of land, in Mason county, and contained this clause: “Covenants of warranty herein contained are subject to a mortgage of $3500, which grantee assumes and agrees to pay as part of the consideration of this deed.” As early as 1856 this court, in Eddy v. Roberts, 17 Ill. 505" date_filed="1856-06-15" court="Ill." case_name="Eddy v. Roberts">17 Ill. 505, where the authorities upon the question are cited, held: “Where one person enters into a simple contract with another for the benefit of a third person, such third person may maintain an action for the breach, and such a contract is not within the Statute of Frauds.” 'This doctrine has been followed and announced in many subsequent cases. Following the same principle, this court has also held that where a person becomes the purchaser of real estate by deed, which, at the time, is incumbered by mortgage, and in the deed conveying the property it is stipulated and agreed that the purchaser assumes and agrees to pay the mortgage as a part of the consideration, the contract creates a personal liability on the purchaser in favor of the holder of the mortgage, which may be enforced in an appropriate action. (Flagg v. Geltmacher, 98 Ill. 293" date_filed="1881-03-21" court="Ill." case_name="Flagg v. Geltmacher">98 Ill. 293; Rogers v. Herron, 92 Ill. 583" date_filed="1879-09-15" court="Ill." case_name="Rogers v. Herron">92 Ill. 583.) The same principle has often been decided in the courts of other States. Burr v. Beers, 24 N.Y. 178" date_filed="1861-12-05" court="NY" case_name="Burr v. . Beers">24 N. Y. 178; Thorp v. Keokuk Coal Co. 48 id. 253.
In so far, then, as the liability is concerned, the law may be regarded as well settled; but the important inquiry is, whether the averment in the bill establishes a contract which brings the case within the rule announced.- Had the bill averred that Thompson had signed and sealed the deed, or that the deed had been delivered to him and he had accepted it, the case would have been relieved of all difficulty; but such was not the averment. It may be that an averment that land has been sold and conveyed, is enough from which it may be implied that a deed was delivered, where no question is involved except the mere conveyance of land, as was held in Whitten v. Whitten, 36 N. H. 326, and other eases cited in the brief; but the question before us is of a different character. A contract to assume an incumbrance on land purchased is not one of the essential parts of a deed of conveyance,—indeed, such a contract is a stranger to a deed,— and when the complainants in the hill undertook to bind Thompson by an averment, they should, in some mode, allege the making of a contract between Punk and Thompson, under which the latter would be bound to pay and discharge the mortgage indebtedness. The mere fact that Punk and his wife executed and acknowledged a deed, and inserted therein a clause that Thompson should pay the mortgage named in the deed, would not create a personal liability upon him. In order to make the assumption clause in the deed binding and obligatory on Thompson, it was necessary to go one step further, and show that he assented to that clause in the instrument. This might be done by showing that he signed and sealed the deed. Had he done this, then he would have been a party to the contract. Or it might be shown that the deed was delivered to and accepted by him. Had he accepted the deed, his assent to all that it contained would have been inferred in like manner as if he had signed and sealed the instrument. The law requires something more than the mere insertion by the grantor of a clause in a deed that the grantee assumes an incumbrance. The grantee’s assent to the contract must, in some, way, appear, otherwise a fraud might, in many cases, be perpetrated upon a grantee. Suppose A owned a tract of land, mortgaged for $5000, but worth only one-half that amount. He executes, acknowledges and places upon record a deed conveying the land to B, the deed containing a clause binding B to pay t-he mortgage. Could B, who never accepted the deed or assented to its terms, be held liable for the mortgage? The answer is obvious, that he could not be held liable for the mortgage, for the reason that he never, in any manner, assented or agreed to the contract contained in the instrument. Had the assumption clause incorporated in the deed been an essential part of the deed, the question would have been different; but it was not a necessary part of the deed, as said before, and, in our judgment, the allegation that the land was sold and conveyed was not sufficient to bind the grantee to the terms of an independent contract which is not a necessary part of the instrument.
But it is said the deed was recorded; but that does not obviate the difficulty in the case. The act of recording a deed can not amount to a delivery and acceptance when there does not appear an assent or knowledge by the grantee of the act. This was held in Herbert v. Herbert, Breese, 354, and approved in Wiggins v. Lusk, 12 Ill. 132" date_filed="1850-12-15" court="Ill." case_name="Wiggins v. Lusk">12 Ill. 132. There are cases where the recording of a deed might he regarded as prima facie evidence of a delivery, as was Himes v. Keighblingher, 14 Ill. 469" date_filed="1853-06-15" court="Ill." case_name="Himies v. Keighblingher">14 Ill. 469; hut the recording alone, in a case of this ■character, can not be held sufficient to prove a delivery of the deed, and thus establish a contract against the grantee of the deed, binding him to pay a mortgage on the premises.
In conclusion, we are satisfied that the averment in the hill was not sufficient to authorize a money judgment against Thompson.
The judgment of the Appellate Court will be reversed, and the cause remanded.
Judgment reversed.
I do not concur in this opinion. It seems to me the allegations of the hill are sufficient to support the decree.
Dickey and Mulkey, JJ., also dissent from the above opinion.