60 Minn. 173 | Minn. | 1895
The complaint is in the ordinary form upon promissory notes executed by defendants to plaintiff. The answer admits the execution of the notes, but alleges that they were secured by several mortgages executed by defendants to plaintiff upon real estate owned by the defendant Bussell R. Dorr; that “thereafter he sold and conveyed the same, and all of the same, to one E. G~. Rogers, who paid the valuable consideration therefor, and that the amount of said notes and mortgages constituted a part and portion of said consideration, and said notes formed and made a part of the purchase price of said premises which said Rogers then and there .agreed to pay to this defendant Russell R. Dorr”; that thereafter, and while Rogers was the owner of the land, the plaintiff entered into a written, contract with him, whereby it was agreed that payment of said notes and mortgages should be extended for a period of three years from the maturity thereof; that these defendants did not consent to such extension; that the value, of the mortgaged premises at the time of the maturity of the notes before such extension was $12,000. The’court ordered judgment in favor of the plaintiff on the pleadings for the amount of the notes, and from this judgment defendants appeal.
Plaintiff’s counsel claim that the proper construction of the answer is that Rogers had paid the full purchase price, including the amount of the mortgages, to defendant Russell R. Dorr. The answer is certainly not a model off clearness, but, taking it as a whole, we think that, at least as against a motion for judgment on the pleadings, it should be construed as meaning that Rogers bought the land subject to the 'mortgages, and that plaintiff granted him the extension with knowledge of that fact. The answer might perhaps admit of the construction that Rogers personally assumed and agreed to pay the mortgages, but we will assume that he merely bought the land subject to them. The quite ingenious argument of plaintiff’s counsel may, we think, be all summed up in the following propositions: (1) That if Rogers did not assume payment of the mortgages, so as to be personally liable, then defendants could not be sureties for him, because there would be no principal; (2) that no agreement between defendants and Rogers, to which plaintiff was not a party, could put Rogers and defendants in the relation of principal and surety towards the plaintiff, so that his granting time to Rogers would re
The equitable principles applicable to the facts seem to us so plain and so well settled that we do not deem it necessary to cite authorities in their support, unless, perhaps, to refer to Murray v. Marshall, 94 N. Y. 611, which is especially in point. The only thing that we have found in the books at all in conflict with the views we have expressed is a statement in Shepherd v. May, 115 U. S. 505, 6 Sup. Ct. 119, in substance repeated in Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, to the effect that an agreement of the mortgagor’s grantee (to which the mortgagee is not a party) to pay the mortgage does not put the grantee and the mortgagor in the relation of principal and surety towards the mortgagee, so that the latter, by giving time to the grantee, will discharge the mortgagor. The statement in the first case was wholly unnecessary to the decision, and none of the authorities cited by the court have any tendency to support it. In the second case the statement was pure obiter, and no authority is cited except Shepherd v. May. That the court had not
fn either view, the judgment must be reversed.