Lawrence v. Towle

Smith, J. The recital in the deed, that the premises were subject to a mortgage to Perkins for $5,000, without words importing that the defendant assumed payment of the debt, did not bind her personally to pay the debt. No obligation to pay was in terms expressed, and the law will not imply or raise a promise or covenant. The insertion of such a clause qualifies the covenants of warranty on the part of the grantor, and is notice merely to the grantee that he is buying only the equity of redemption. Trotter v. Hughes, 12 N. Y. 74; Belmont v. Coman, 22 N. Y. 438; Binsse v. Paige, 1 Keyes (N. Y.) 87; Stevenson v. Black, Saxton (N. J.)338; Klapworth v. Dressler, 2 Beas. Ch. (N. J.) 62; Post v. Bank, 28 Conn. 420; Johnson v. Monell, 13 Iowa 300; Kearney v. Tanner, 17 Serg. & R. 94; Fiske v. Tolman, 124 Mass. 254; Woodbury v. Swan, 58 N. H. 380; 1 Jones Mort., ss. 735-9. The law has been held otherwise in England. Waring v. Ward, 7 Ves. 333. When a deed contains words that the grantee is to pay the debt, his acceptance of the deed is evidence that he has promised to do what the deed says he is to do. Belmont v. Coman, supra. The whole value of the premises, and not merely of the equity of redemption, being expressed in the deed as its consideration, and the conveyance being declared to be subject to the Perkins mortgage, the interpretation of the language of the deed thus used is, that so much of the purchase-money as the mortgage amounts to, being deducted, is not to be paid except as it is charged upon the premises. Belmont v. Coman, 22 N. Y. 438, 441. There being, then, no contract in the deed that the defendant was to pay the incumbrance, the question for the jury was, whether the plaintiff paid the interest on the Perkins mortgage at the defendant’s request, subsequently to 1876: and this question involved the further question, whether the balance of the purchase-money was to be paid by the defendant’s giving her note for $5,000, secured by a mortgage upon the premises, or by assuming the payment of the debt to Perkins. The evidence as reported preponderated largely in favor of the plaintiff; but the jury have found in favor of the defendant. A verdict will not be set aside as being against the weight of evidence, unless the preponderance was so great as to make it apparent that the jury were misled, or failed to consider intelligently the evidence laid before them— Clark v. Society, 45 N. H. 331, 334, and authorities cited; Jewell v. Railway, 55 N. H. 84, 95; — and that is a question for the judge who tried the case to determine. The doctrine of estoppel does not apply. Whether the contract was as claimed by the plaintiff, or by the defendant, the payment by the latter of interest to 1877 was in part execution of the con- ■ *31 tract, and it does not appear that her refusal to pay after that date in any way caused the plaintiff to change his position, or prevented him from taking steps to enforce compliance by the defendant with the contract as she claimed it to be. The evidence excepted to was received for a single purpose, and was accompanied with proper instructions. We cannot presume that the instructions were disregarded. Exceptions overruled. Allen, J., did not sit: the others concurred.