159 Ind. 1 | Ind. | 1902
— On the 5th day of October, 1899, appellant and appellee Margaret A. Hopton entered into an executory contract in writing, by the terms of which the latter bound herself to sell and convey to appellant, “by good and sufficient warranty deed,” a certain tract of real estate. The obligation of appellant was expressed in said contract as follows: “Said J. Wesley Whicker, party of the second part, to pay cash in hand, on the delivery of the deed, the sum of • $1,752.50, and assume all unpaid taxes and mortgages shown of record and all other liens on said lands, including an attachment proceeding now pending.” This contract was consummated, upon the part of said Margaret, on the same day, by the execution of a warranty deed to appellant. At the time of making said contract there was an unrecorded mortgage against said land, made by appellee Margaret and held by appellee Jacob Hushaw, that had been long overdue, and appellant had full knowledge of its existence at the time he entered into said contract. The endeavor of appellees in this action Avas to hold appellant personally responsible for the amount of said mortgage, as upon a debt assumed. The evidence is not in the record. The complaint does not allege, and'the special findings that were filed in the case do not show, any further extrinsic facts that might
The cases are many in this State that recognize the right of the holder of a mortgage to avail himself of an existing agreement between the mortgagor and his vendee, by which the latter assumes the payment of the mortgage debt. These cases have not dealt with the philosophy of such a ruling, but in other states various reasons have been assigned in support of the right of the holder of such mortgage to sue upon the contract, such as a trust relationship, the equitable right of subrogation, agency, privity of contract by substitution, and the broacT equity of the transaction. See note to Baxter v. Camp, as reported in 71 Am. St. 169, 176.
Although the point has not been urged upon our consideration by counsel, we approached the question as to the appellant’s liability in this case with a doubt, that was due to the fact that the contract sued on was executory, and had been consummated on the part of appellee Margaret by the execution of a deed. In a case where a corporation, by resolution, agreed to assume the bonded indebtedness of another corporation, which agreement was accepted by the latter corporation, the Supreme Court of the United States held that the bondholders could not avail themselves of the arrangement, because it constituted at most only an executory agreement inter partes. Second Nat. Bank v. Grand Lodge, etc., 98 U. S. 123, 25 L. Ed. 75. But in the case of an executory contract, in writing, for the sale of real property, the person agreeing to purchase has not merely a chose in action, but in the eye of a court of equity he has an enforceable right to the land, and, on the other hand, the vendor can compel performance. Eor this reason we think that a promise to pay a mortgage that is a part of an executory contract, to sell real estate is to be regarded as of such ultimate character that,
The undertaking of appellee Margaret A. Hopton, “to sell and convey, by good and sufficient warranty deed,” r&quired that she should make a deed with the statutory covenants. Clark v. Redman, 1 Blackf. 379; Linn v. Barkey, 7 Ind. 69; Bethell v. Bethell, 92 Ind. 318. Doubtless, she was entitled to limit the effect of the words “convey and warrant” by restrictive language as to liens (Jackson v. Green, 112 Ind. 311), but it can scarcely be held, in view of the ambiguous language of the latter part of the instrument, that the contract contemplated that she was entitled to limit her covenant against encumbrances by -subsequent language that would entirely cancel such undertaking. We are, therefore, able to approach the language by which it is claimed that the assumption was created with a considerable degree of assurance that there was at least a class of liens' that it was contemplated that the grantor should covenant against; and from this fact it follows that the words “all other liens,” in the grantee’s covenant, are especially liable to he restrained by other words in the immediate context. We find such restrictive words in the provision that the grantee is to “assume all * * * mortgages shown of record.” This language calls for the application of the maxim, expressio unius, exclusio alterius. The language restricts that which is general by that which is particular and spe
We regard the assumption of the grantee of “mortgages shown of record” as absolutely inconsistent with a construction of the contract that would make him assume mortgages not shown of record, notwithstanding the subsequent words, “and all other liens.” As Lord Eldon.observed, in Browning v. Wright, 2 Bos. & Pul. 13, 24: “What would be the use of any of the other covenants if this were general ?” If appellees’ construction is correct, the parties to the contract might as well have simply provided that the grantee should assume all liens. An argument in support of a construction that renders the other closely connected, specific provisions idle can not command our assent.
It is true that the court finds that the appellant knew of the existence of the Hushaw mortgage, but it is a far cry from this fact to the conclusion that appellant assumed it. In the first place, such a construction would rup athwart the language of the covenant that impliedly -excludes from the assumption all mortgages not “shown of record,” and, in the second place, there are no facts alleged or found which would have made it antecedently probable that it was within the contemplation of the parties that appellant should pay such mortgage. To illustrate the last proposition: There is nothing in the facts found which excludes the idea that definite provision was made at the time of the execution of the contract for the discharge of such obligation by the grantor. Contemporaneously with the transaction, a draft for the amount of the debt may have been mailed to the mortgagee that did not reach him, or that he failed to realize on. So there is no force in the argument of appellees that it is against the probabilities that appellant would have paid over the purchase money relying upon his grantor’s covenant.
In a case like this, where the instrument is the basis of
We think that in this case we should not order judgment to go in appellant’s favor on the special findings, but that a new trial should be granted, and leave given appellees to amend their complaint, if they apply for permission so to do.
Judgment reversed, with a direction to the trial court to _ grant a new trial, and for further proceedings not inconsistent with this opinion.