Santee v. Keefe

McClain, J. 1. assumption of mortgage: liability of grantee. Plaintiff became tbe owner of tbe mortgage which be seeks to foreclose by an assignment from one Green, to whom it was executed by one Borger, on certain l°t ™ Webster City. Thereafter tbe defendants, Coldren & Mallon made an exchange with Borger of a tract of land in South Dakota for tbe lots in question; Borger assuming a $1,400 incumbrance on tbe Dakota land and paying Coldren & Mallon $750 in cash, with tbe agreement that tbe $700 mortgage to Green should be assumed and paid off by tbe purchaser of tbe lots. Tbe deed for tbe lots which Borger executed and delivered to Coldren & Mallon at tbe time of tbe exchange was left blank as to the grantee, and subsequently Coldren & Mallon traded tbe lots to defendant Keefe, taking 'in exchange' a tract of land in Nebraska. Tbe trial court reached the conclusion that Keefe did not assume tbe payment of tbe mortgage indebtedness on the lots, and, as plaintiff does not appeal, we have no further concern with Keefe’s liability. But counsel for Coldren & Mallon contend that they were not 130 the grantees in tbe deed from Borger, and therefore assumed no personal liability for the payment of the mortgage indebtedness. It is sufficient to say, however, on this branch of the case,, that the evidence shows Ooldren & Mallon to have been the real grantees from Borger, and that it was at their request that the name of the grantee was left blank in the deed, so that they might insert the name of the person to whom they should eventually transfer the 'title. That the real grantee may be personally held under an assumption of the mortgage indebtedness, although his name is not inserted in the deed, is settled by the case of Bossingham v. Syck, 118 Iowa, 192. It is true that the conveyance of the Dakota land to Borger in. exchange for the lots was executed by K. G. Mallon, a brother of J. N. Mallon, who is a member of defendant firm; but we are satisfied that the intention of the parties on both sides was that the title to the lots should pass to defendants Ooldren & Mallon, and that they treated the property as belonging to them. When Ooldren & Mallon deeded the Nebraska land to Borger in exchange for the lots, Borger’s deed for the lots was already executed; and there is no satisfactory evidence that either in the negotiations with Borger or in the negotiations with Keefe they acted only as agents. 2 same It is further contended for appellants that plaintiff, after Borger had exchanged the lots covered by the mortgage for the Dakota land, entered into an arrangement with with his assignee, Green, to which plaintiff assented, by which the Dakota land was transferred to plaintiff in satisfaction of the mortgage on the lots. It does appear that plaintiff became the owner of the Dakota land, but his direct acquisition of title was by means of a quitclaim from Mrs. Borger after her husband’s death, for which he paid $50, and the extinguishment of the title of the fee owner by negotiations directly with him; it appearing that the title held by Borger and his wife was under a tax sale. There is no satisfactory evi 131 dence that the conveyance of the Dakota land to^plaintiff was intended to be or was accepted as a satisfaction of the mortgage on the Webster City lots; but it is shown, on the other hand, to have been a wholly independent transaction having no reference to the mortgage. ' Without discussing further the evidence, it is sufficient to say that we reach the conclusion that plaintiff’s mortgage remains unsatisfied, and that Ooldren & Mallon assumed and agreed to pay it. The decree of the trial court, by which they were adjudged to be personally liable to plaintiff by reason of such assumption and agreement, is affirmed.