Lane v. Davis

Mr. Justice Duncan delivered the opinion of the court. The only question presented for our decision is whether or not Herman C. Schwulst is liable for any deficiency decree. It is conceded by all the parties interested in this question, that the land will not more than pay the first mortgage lien, and. that after sale thereof there will be a large deficiency. It is insisted by appellee that by the original contract between Aydelott and Schwulst, the latter was to take said land subject to said mortgages amounting then to about $2,700 and was to assume said mortgage debt; that said contract was the only, written contract between them, and that for that reason the written contract was not and could not be varied or changed by any subsequent verbal contract because it would be within the statute of frauds and void. The statute of frauds is not made a question in this case by any of the written pleadings, and if it was we are unable to see how it can be applicable to the facts proven. It is also claimed by appellee that by said written contract $2,700 was to be deducted by Schwulst from the purchase price of the land when he accepted the deed; and that he promised to pay said sum to Owings and Cox as part of the purchase price for the land, and by reason thereof he is liable to appellee for the amount due on his note and mortgage. According to the tenor of the orginal contract to convey the land, Schwulst assumed the mortgage debt of $2,700; and if that contract had remained unchanged he would be liable for the deficiency decree. But it is clearly proven, and it is not denied, that Schwulst after this contract was handed to bim claimed to Aydelott that he did not understand that he was to assume this debt and that he would not do so. Pie refused to accept the first deed tendered to him because in that deed it provided that he assumed this debt. Schwulst swears positively that he met Aydelott at a lumber yard in Bloomington in July,. 1907; and that when told that the deed would not be accepted because of the clause providing that Schwulst assumed the mortgage, Aydelott said he would make and send him a new deed subject to the mortgages; and that he further said he did not intend for him, Schwulst, to assume those mortgages, and that Aydelott sent the second deed as agreed. This testimony is not denied by Aydelott and is corroborated by John F. Welch. Frederick F. Bell, the representative of Aydelott in this transaction, also swears that Schwulst refused to accept the first deed because of the clause binding him to assume the mortgages; and that then a second deed was made and delivered to Schwulst, simply providing that the land was conveyed subject to these mortgages. The deed so delivered and offered in evidence merely provides that the land is conveyed subject to the mortgages without any contract or agreement to assume or pay the mortgages. Schwulst also swears he never promised Owings to pay his mortgage. The appellees’ counsel claims that Aydelott denied making any other contract with Schwulst except the original contract in writing; but what Aydelott does swear, as a matter of fact, is that there was no other written contract. The parties had a right to rescind the original contract or any part of it, and the evidence shows clearly that they did so by simply changing a part of the consideration. By the new contract there was no agreement to assume the mortgage. On the other hand there was a positive understanding or agreement that he was not to assume it, and the deed itself expresses the full contract of the parties. Taking a deed subject to outstanding mortgages, creates no personal liability on the grantee to pay off the encumbrances, unless he has by contract, expressed or clearly implied, specially agreed to do so. Rapp v. Stoner, 104 Ill. 618; Crawford v. Nimmons, 180 Ill. 143; Harrison v. Polar Star Lodge, 116 Ill. 279; Farrar & Wheeler v. Toliver, 88 Ill. 408; Cooke v. Murphy, 70 Ill. 96. The lower court erred in sustaining the exceptions to the master’s report, and in decreeing that the appellant was personally liable to appellee for any part of his mortgage debt, and in decreeing that he pay thé same. The decree of the lower court is therefore reversed and the cause is remanded with directions that the court overrule the exceptions to the master’s report and enter a decree therein in conformity with the views herein expressed by this court. Reversed and remanded with directions.