Weaver v. McKay

108 Cal. 546 | Cal. | 1895

Temple, J.

This action was brought to foreclose a mortgage executed by Margaret Griffith and R. B. Johnson to secure the payment of their note for four thousand five hundred dollars to plaintiff.

After the mortgage was executed and recorded appellants purchased the premises, and took a deed from R. B. Johnson, who had become the sole owner, in which was contained the following:

“This conveyance is made subject to that certain mortgage made by Margaret M. Griffith, a married woman, and R. B. Johnson to N. M. Weaver, dated February 10, 1891, for the sum of $4,500, and recorded in volume 79 of Mortgages, at page 433, records of Fresno Co., Cal., which said mortgage and the note secured thereby, and the interest due and to grow due thereon, the grantees herein hereby assume and agree to pay, discharge, and satisfy, and to hold grantees [grantors] herein harmless therefrom, as a part of the consideration of this conveyance.”

The deed was executed January 17, 1893, and was in performance of an agreement between Johnson and appellants made December 20, 1892. In that agreement it was stipulated that Johnson should receive from appellants a described tract of land, in consideration of which, and of one thousand dollars cash, he would convey to appellants various tracts, and among them the mortgaged premises. Some of the other tracts were also encumbered. As to one, it was stipulated that it should be conveyed; subject to a mortgage of eighteen hundred and fifty dollars; as to the mortgaged premises in question here, that it should be conveyed “subject to the indebtedness thereon.”

It is contended that the deed does not accord with the agreement in this, that by the agreement appellants were to take the land subject to the mortgage, whereas by the deed they are made to assume the payment of the mortgage debt, and thereby to become liable to pay a judgment for deficiency if the land does not sell for enough to pay the debt. They aver in their answer that they were induced to accept the deed containing this stipulation by the fraudulent assurance of Johnson that it was exactly like the other deed, which was only subject to the mortgage. Upon this issue the court found for the plaintiff, and the finding is abundantly sustained by the evidence.

Appellants’ counsel contends, however, that because the agreement is set out in the answer in hsec verba, and its genuineness is not denied, it overcomes all other testimony upon the subject.

If it be conceded that the stipulation contained in the agreement did not require that appellants should assume the payment of the mortgage debt, still, if they knowingly accepted as performance such a deed, it was no fraud upon them, and they have no claim for relief. Upon the issue as to whether they were induced to accept the deed by fraud, the written agreement is not evidence.

I cannot understand the claim that setting out the contract in the answer tendered or made a distinct issue upon which there should have been a finding. It is set out -as a part of the charge of fraud, and upon that issue there is a finding.

Exception was taken to the offer of the deed in evidence to prove the assumption of the mortgage debt by-appellants, on the ground that such portion of the deed was no part of the conveyance, and did not need to be recorded, and, therefore, a certified copy of the record is not evidence. The construction contended for is too narrow, but, even had the stipulation been contained in a separate instrument, it would be entitled to record under section 1158 of the Civil Code.

The judgment and order are affirmed.

Henshaw, J., and McFarland, J., concurred.