Myers v. Bowers

Need, J. The petition contains the following allegations: “Par. 6. That on or about the twenty-first day of November, 1882, M. N. Oole and O. W. Oole, husband and wife, made and executed their joint warranty deed to A. L. Bowers of the said real estate above described, with the express [96] covenant in said conveyance that said real estate was subject to a mortgage of two hundred dollars to Jacob Myers, bearing date February 22, 1882, and that said A. L. Bowers bought said real estate with full knowledge of said incum-brance, and the further agreement that the same should be deducted from the amount named in the deed as apart of the pui’chase price of said property.” The deed is attached to the petition as an exhibit. It contains a covenant against all liens and incumbrances except the mortgage in suit. There is, however, no recital that the property was purchased by Bowers, subject to the mortgage, or that he assumed the payment of the mortgage debt. The allegations of the paragraph of the petition quoted above are not denied in the answer, and the question raised by the demurrer is whether the defendant is entitled to avail himself of the matters pleaded in his answer as a defense against the mortgage. The allegation that defendant purchased the premises with knowledge of the mortgage, and with the agreement that the amount of the debt should be deducted from the purchase price of the property, not being denied, must be deemed true: Code, § 2712. We are of the opinion that defendant cannot, while admitting the truth of this allegation, avail himself of the matters pleaded in his answer as a defense against the mortgage. He, in effect, admits that in the transaction between him and the Coles it was agr'eed that the amount of the mortgage debt should be deducted from the purchase price of the property, and that he would pay that amount to the holder of the mortgage. The parties in that transaction treated the mortgage as an incumbrance on the property, and dealt with each other on the assumption that it was a valid instrument, and defendant obtained all the advantages and benefits which would have accrued to him if, as between the parties to the instrument, it had been of unquestionable validity. He now seeks, while retaining those advantages, to defeat in entirely. It is manifest, we think, that upon plain, equitable grounds he ought [97] not to be permitted to do tliis. As be agreed to take the property subject to the mortgage and pay the mortgage debt, and as this contract was entered into by the parties on the assumption that the mortgage was a valid incumbrance on the property, equity will, as against him, treat it as valid ®nd enforce it accordingly. Affirmed.