Brogan v. Ferguson

Bill was brought by Lillian H. Brogan against Ferguson, Allison, Quinn and Karman to compel them to pay Albert V. B. Bennett a first Mortgage upon certain lands in Palm Beach County, given to said Bennett by Lillian H. Brogan and to foreclose a second mortgage given to her by John W. Ferguson, and for a decree against these defendants personally, should a deficiency exist after the foreclosure. Albert V. B. Bennett was joined as a party to receive payment of the money due him. The bill alleged that Lillian H. Brogan bought certain lands in Palm Beach County from Albert V. B. Bennett; that she gave him a mortgage upon the property to secure the balance of the purchase price owed to him; that she then sold the property to Ferguson, who assumed and agreed to pay the mortgage she had given to Bennett, and gave her a second mortgage upon the property to secure the balance of the purchase price owed to her; that Ferguson then conveyed the property to Allison and Quinn; and that in the deed from Ferguson to Allison and Quinn which they accepted, they assumed and agreed to pay both the Bennett and the Brogan mortgages. Allison and Quinn finally conveyed to Karman. Both mortgages matured before the bill was filed. Quinn filed a plea setting forth the deed under which he and Allison acquired title, in which deed defendant Quinn agreed that "A part of the consideration for these covenants is that the said John W. Ferguson did take title to the above described property from Lillian H. Brogan, in trust for said grantees, and that the said grantees, by acceptance of this conveyance, hereby covenant and agree to and with the grantors that they will assume and pay and save harmless the grantors from all liability whatsoever on account of notes, mortgages, *Page 1309 taxes and other expenses incurred or that may be assumed by either of the grantees, on account of or in behalf of the property herein described." The plea was set down for argument and was sustained by the circuit judge. From the decree sustaining the plea, the complainant appealed. The question presented is, did Quinn, in the deed to him and Allison, assume and agree to pay the mortgages held by complainant Brogan and defendant Bennett? Language in a deed is presumed to be chosen by the grantor and it is within his power to make the deed so plain and intelligible in its language as to show an assumption or general promise to pay, if such was his intention and was agreed upon between the parties; and in case of doubt, it will be presumed the deed did not intend a present assumption of, and agreement to pay, the mortgage on the part of the grantee. Jones on Mortgages (8th Ed.) Section 934. The covenant on the part of defendant Quinn contained in the deed is that he will assume and pay and save harmless the grantors from all liability whatsoever on account of notes, mortgages, etc. There is no express assumption here of the mortgages mentioned in the bill or either of them; nor is there a direct promise to pay the said mortgages; the agreement is that they will assume and pay and save harmless the grantors from all liability etc. The word "liability" ordinarily means an obligation which may or may not ripen into a debt, and this, when coupled with the use of the word "will" in an agreement by grantees that they will assume and pay and save harmless the grantors from all liability, is indicative of an intent *Page 1310 to postpone the time of the paying, assuming, and saving harmless of the grantor from liability until the happening of some event or the ascertainment of the extent of liability. An agreement by grantees that they will assume and pay and save harmless the grantors from all liability may be regarded, we think with propriety, as a contract of indemnity on the part of the grantees and not as an assumption by grantees of, or promise by them to pay, an existing mortgage indebtedness. A mortgagee as such has not the right of recovery against a remote grantee who has only agreed to indemnify his individual grantor, First Nat. Bank v. Schussler, (Ky.) 2 S.W. 145. It is contended that when Quinn accepted the deed from Ferguson, which recited that "Ferguson did take title from * * * Lillian H. Brogan in trust for * * * grantees", Quinn acknowledged the existence of Ferguson' agency and ratified the acts of his agent and thereby became liable to the complainant for such agent's contract. The case of Humphrey v. Bussey, ___ Fla. ___, 128 So. 841, is cited to support this view. In that case, however, it appears the declaration alleged a statement of facts which took place and these facts as alleged were held by the Court to imply a promise by the real parties in interest to pay the price agreed upon by their agent for the land. The same may be said with regard to the case of Coaling Coal Coke Co. v. Howard,130 Ga. 807, 61 S.E. 987, 21 L. R. A. (NS) 1051, cited by the Court in Humphrey v. Bussey, supra. In the case at bar, complainant does not rely upon a state of facts pleaded from which the Court might imply *Page 1311 a contract on the part of the principal to pay the price agreed upon by his agent, but the bill of complaint, as against the defendant Quinn, is founded squarely upon an alleged express contract; to-wit, that the grantees Quinn and Allison, in the deed to them, assumed and agreed to pay the Brogan and Bennett mortgages. The case at bar also differs from Herrin v. Abbe, 55 Fla. 769, 46 So. 183, 18 L. R. A. (N. S.) 907, cited by appellant in her brief, where complainant relied upon a parol contract of assumption on the part of the grantee which was fully set forth in the bill. The decree of the court sustaining the plea of the defendant Quinn is affirmed and this cause is remanded for further proceedings.