State Insurance v. Irwin

Gill, J. In the year 1887, Irwin sold and conveyed to Taylor a vacant lot in Kansas City. The purchase price was $1,500, of which Taylor paid $300 in cash and gave his note to Irwin for the balance. In order that Taylor might erect a residence on the lot, Irwin agreed that Taylor might borrow from a third party $1,675 on the property, and that he, Irwin, would accept a second mortgage to secure the balance of the purchase money. Thereupon Taylor borrowed the above named amount from a loan company; executed to it his note and first mortgage, and gave to Irwin a second mortgage. Taylor built a house on the lot and occupied it for about a year; when, because of his inability to pay interest on the two mortgages, he made a sale and conveyed the same to one Hanback. The latter paid in cash about $130, which went to the extin [93] guishment of some interest past due, and in addition deeded to Taylor eighty acres of land in Taney county. The deed from Taylor to Hanback was an ordinary warranty deed, stating a consideration of $4,000 but reciting on its face that it was made “subject” to an incumbrance of $2,935. This was at that time the aggregate amount of the two mortgages. Hanback owned and occupied the property for a while, and then, for a nominal consideration of $1, made a quitclaim deed to defendant Irwin. This last deed of Hanback to Irwin contained this clause: “Subject to a deed of trust dated November 8, 1887, to L. R. Smith to secure the payment of $1,675.” It will be remembered that this was the first mortgage loan procured by Taylor from the loan company. Plaintiff purchased the last named note and mortgage from the loan company; and, after foreclosing the same, brought this action against Irwin for a balance due thereon of about $1,300. This, of course, was originally the debt of Taylor. But plaintiff alleged in its petition, and sought to charge defendant Irwin on the alleged ground that when Hanback bought from Taylor, he (Hanback) assumed and agreed to pay this first mortgage; and when Irwin subsequently took a conveyance from Hanback, he (Irwin) likewise agreed and promised to pay said incumbrance. There was a trial by jury, resulting in a finding and judgment for defendant Irwin, and plaintiff appealed. Reversal is asked on two general grounds — that the court erred in giving and refusing instructions, and erred in admitting and excluding evidence at the trial. As to the instructions, the court in effect told the jury that the clause, “subject to a deed of trust dated November 8, 1887, to L. R. Smith, trustee, to secure the payment of $1,675,” contained in the deed of Han94 back to Irwin, did not constitute an agreement on the part of Irwin to pay said debt; that, to justify a recovery it was incumbent on plaintiff to prove that when Hanback purchased the lot from Taylor, he (Hanback) orally agreed, as a part of the purchase price, to pay the said mortgage debt which Taylor owed the loan company, and further that when Irwin subsequently took a conveyance from Hanback, he (Irwin) orally agreed, as a part of the purchase price, to pay said Taylor debt and mortgage. It seems that this comprised about all the law necessary to be given to the jury. From an examination of plaintiff’s petition we find that it rested its right to recover on the affirmative of the above propositions— that is, that Hanback, Taylor’s grantee, agreed to pay the loan company’s mortgage, and that subsequently when Hanback conveyed to Irwin, it was agreed that Irwin would assume and pay said mortgage debt. The defendant denied these allegations; evidence was adduced on both sides of the issues thus made; and as the jury found in favor of the defendant, it must end the controversy, unless some other prejudicial errors were committed against the plaintiff. The court properly instructed the jury as to the obligatory force — or, rather, want of obligatory force, of the words used in the conveyances: ‘‘subject to a deed of trust * * * of $1,675.” This clause properly construed did not impose a personal liability on either Hanback or Irwin to pay off the outstanding mortgage. Unless there was, at the time, an express agreement to that effect, they were not personally liable for the mortgage debt. Without proof of such an agreement, such words will be regarded as merely restrictive of the covenants of warranty made by the grantor. 2 Washb. Real Prop. [5 Ed.], pp. 117, 217, et. seq.; Hall v. Morgan, 79 Mo. 47. [95] The refusal of plaintiff’s instructions numbered 3 and 4 can not be treated as reversible error, even conceding they contained a correct announcement of the law; for, as stated, the court had already declared all the law necessary in the case. It accomplishes no good to multiply instructions, but on the other hand tends rather to confuse the jury. But the instructions above alluded to were subject to the objection that they proposed to submit questions of law to the jury. Whether or not Hanback, at the time he conveyed the property in question to defendant Irwin, “was bound personally to pay the mortgage indebtedness, either by express or implied agreement,” was, the facts proved, a question for the court and not the jury. Considering the instructions altogether, we find them unobjectionable and entirely fair to the plaintiff. After a careful review of the various objections relating to evidence, we find no substantial errors. At most, if error was committed, it was concerning some immaterial matter, or clearly not prejudicial. Judging from the very meager showing of the evidence, as set out in plaintiff’s abstract, it appears the court gave rather a wide range to lawyers and witnesses. This was particularly true with reference to the principal witness for the defendant. On this account the plaintiff’s counsel has complained — asserting that the witness was allowed, during his examination, to argue the case to the jury, etc. The proper conduct of the trial, in matters such as this, must be left to the sound discretion of the trial judge, and the appellate court will not interfere unless a manifest abuse of that discretion appears. The abstract contains only some mere excerpts •and detached portions of the testimony, and from these we are not in a position to declare affirmatively that the court abused its discretion. [96] The plaintiff, it seems, had a fair trial of the issues involved and as we discover no substantial error, the judgment must be affirmed. All concur.