Henry v. . Heggie

Walker, J., after stating the case: We do'not think that the written agreement to buy the lot constituted an assumption of the mortgages, so as to make the defendant liable. personally to the plaintiff for the amount” he paid to satisfy the Taylor debt. The rule, as settled by the authorities, so far as applicable here, is thus stated in 27 Cyc., at pp. 1342, 1343, 1344; “Where a conveyance 'of land is made expressly subject to an existing mortgage, the effect, as between the grantor and the grantee, is *525 to charge the encumbrance primarily on the land, so as to prevent the purchaser from claiming reimbursement or satisfaction from his vendor in case he loses the land by foreclosure or is compelled to pay the mortgage to save a foreclosure; in reality, it amounts simply to a conveyance of the equity of redemption. . . . The grantee of mortgaged land does not incur a personal liability for the payment of the mortgage debt, enforcible by the mortgagee, merely because the deed recites that it is made subject to the mortgage; such personal liability is created only by a distinct assumption of the debt or contractual obligation to pay it. Where the land is sold subject to a mortgage, but without an assumption of it by the grantee, the mortgagor remains liable for any deficiency. But still, the contract being one of indemnity and the land being the primary fund for the payment of the mortgage, if the grantor is compelled to pay it, he may require an assignment of the mortgage to himself, or he will be regarded as an equitable assignee so as to be subrogated to the rights of the mortgagee, and so will be enabled to use the mortgage to force reimbursement from his grantee.” Hancock v. Fleming, 103 Ind., 533; McNaughton v. Burke, 63 Neb., 7045; M. C. & M. Co. v. Hand, 197 Ill., 288; Hartley v. Harrison, 24 N. Y., 170; Londonslager v. W. H. Land Co., 64 N. J. L., 405; Equitable L. Assn. v. Bostwick, 100 N. Y., 628. The McNaughton case holds that, “One who buys land subject to an encumbrance acquires only an equity of redemption; that is, the interest remaining after the encumbrance has been paid. The understanding between the grantor and grantee is that the former reserves for the benefit of the encumbrancer so much of the estate as may be necessary for the satisfaction of the debt. A conveyance of land subject to a mortgage is neither more nor less than a simple deed of whatever interest or estate the grantor has after the debt is satisfied out of it.” Chief Justice Mitchell, in Hancock v. Fleming, supra, said: “ ‘The difference between the purchaser assuming the payment of the mortgage and simply buying subject to the mortgage is simply that in the one case he makes himself personally liable for the payment of the debt, and in the other case he does not .assume such liability. In both *526 cases be takes tbe land charged witb tbe 'payment of tbe debt, and is not allowed to set up any defense to its validity.’ Jones Mort., sec. 736; Atherton v. Toney, 43 Ind., 211; Pomeroy Eq. Jur., sec. 1205. Tbe land, nevertheless, remained tbe primary fund as between tbe purchaser and tbe mortgagee, out of which payment of tbe debt must be made.” It was held in Londonslager v. W. H. L. Co., supra, that, “A declaration counting upon an express assumption of a mortgage by tbe grantee in a deed (tbe deed being made part of tbe declaration) will not be supported by a clause in tbe deed, 'that tbe land is conveyed subject to such mortgage,’ tbe words of assumption being absent” Tbe Court ruled in tbe case of Eq. L. Assn. Co. v. Bostwick, supra, that “A personal obligation on tbe part of a grantee to-pay a mortgage upon tbe premises conveyed may not be implied from a statement in bis deed that tbe conveyance is subject to tbe mortgage, and that tbe amount thereof ‘forms part of tbe consideration and is deducted therefrom.’ ” Tbe language in the last case we have cited is very much like that used in tbe letter of defendant offering to buy tbe lot. A valuable authority is Shepherd v. May, 115 U. S., 505, where tbe Court says: “In order to raise such a liability as is contended for by plaintiff in error, there must be words in tbe deed of conveyance from.which, by fair import, an agreement to pay tbe debt can be inferred. This was expressly held in Elliott v. Sackett, 108 U. S., 132, where Mr. Justice Blatchford, in delivering tbe judgment of this Court, said: ‘An agreement merely to take land, subject to a specified encumbrance, is not án agreement to assume and pay the encumbrance. Tbe grantee of an equity of redemption, without words in tbe grant importing in some form that be assumes tbe payment, does not bind himself personally to pay tbe debt. There must be words importing that be will pay tbe debt to make him personally liable.’ To tbe same effect see Belmont v. Coman, 22 N. Y., 438; Fiske v. Tolman, 124 Mass., 254; Hoy v. Bramhall, 4 C. E. Green, 74, 78; Fowler v. Fay, 62 Ill., 375. There are no such words in tbe deed made by tbe plaintiff in error.” These cases also show that tbe terms of tbe deed tendered by plaintiff and alleged to have been delivered to and *527 accepted by the defendant are sufficient to constitute an assumption of the mortgage debt and an indemnity against its payment by the plaintiff. So that it all comes back to the point whether the deed was delivered by the plaintiff and accepted by the defendant so as to bind the latter to a performance of its covenants or stipulations. This is a mixed question of fact and law. The jury must find the facts and the judge declare the law arising thereon. We' find, upon examination of the record, as will appear by our statement of the case, that the evidence upon this matter, the acceptance of the deed, was conflicting, and therefore the court could not direct the jury how to find if they believed the evidence. Rickert v. R. R., 123 N. C., 255; Cox v. R. R., ibid., 611; Bank v. Nimocks, 124 N. C., 352. The jury cannot well believe all of the evidence, if it conflicts. It amounted to an instruction that there is no evidence to prove defendant’s contention, when we see that there is. He denies that he accepted the deed, and testifies that he rejected it. Besides, the plaintiff produced the deed at the trial and offered it in evidence. All of this was some evidence. It was stated on the trial as a fact, though it does not appear in the record, that the deed was produced by the defendant under a notice to him or a rule of the court requiring him to do so. If this appears in the case at the next trial, it may have an important bearing upon the question of delivery and acceptance. If the defendant received and accepted the deed, he is liable upon its covenants, as the acceptance by the grantee of a deed containing a covenant to be performed by him as the consideration of the grant, or a part thereof, is equivalent to an agreement on his part to perform it, without regard to whether he signed it or not. 11 Cyc., 1045; Maynard v. Moore, 76 N. C., 158, citing Staines v. Morris, 1 Ves. and B., 14; Finley v. Simpson, 4 Zabris (N. J.), 311; Herring v. Lumber Co., ante, 481. There was error in the charge, as pointed out, and there must be another trial. New trial.