Manning v. Cullen

VandeRbuegh, J. On the 3d day of July, 1890, one Bellows was the owner of the land described in the complaint, and on that day he conveyed the same by warranty deed to Frank J. Brehler, who, in part payment therefor, executed his notes to Bellows for $800, secured by a purchase-money mortgage. The notes were afterwards indorsed and transferred to the plaintiff, who is the present owner thereof. Thereafter-, on December 30, 1890, Brehler conveyed the same land to the defendant, subject to the mortgage. It is alleged in the complaint that at the time of the conveyance to him, and in consideration thereof, the defendant expressly agreed to assume and pay these notes. It is also alleged that he had so promised and agreed when the purchase was originally made and the notes given, the plaintiff claiming that the title of Brehler was merely colorable, and that Cullen was the real purchaser. The findings of the court are in defendant’s favor, and it is distinctly found that the defendant did not assume or agree to pay the notes, or either of them. The evidence is conflicting on the subject, but there is sufficient in defendant’s favor to support the finding. And, conceding that such an agreement by [570] defendant, though by parol, made in consideration of the conveyance to him, would not be within the statute of frauds, — Randall v. Constans, 33 Minn. 335, (23 N. W. Rep. 530,) — yet it must be established, and cannot be inferred merely from the fact that Cullen was previously interested in the property, or that Brehler was holding it for him. The deed made the property the primary fund for the payment of the mortgage indebtedness, and, in the absence of evidence of an express agreement to assume the notes, there is nothing on which to base the claim that the defendant is personally liable therefor to the plaintiff. (Opinion published 52 N. W. Rep. 973.) Judgment affirmed.