Blyer v. Monholland — 2 Sand. Ch. 478

Majority

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Blyer v. Monholland and others.

Headnote

Where one purchases land which is subject to a bond and mortgage executed by his grantor, and in his deed assumes and agrees to pay the mortgage ; he is liable to his grantor to pay the same as a part of the price or consideration of the land.

As between him and the mortgagor, the latter thereupon becomes a surety for the former, in respect of the mortgage debt.

The obligation of the purchaser to pay the debt, enures in equity to the benefit of the mortgagee; and he may enforce it against the purchaser, to the extent of the deficiency, in a bill to foreclose his mortgage.

March 8, 10 ;

April 5, 1845.

On the 23d of November, 1835, Samuel Fitz Randolph being indebted to the complainant by his bond of $2500, executed to the latter a mortgage on a lot in the city of New York, to secure its payment.

On the 1st of February, 1839, Fitz Randoph sold the lot to the defendant, Monholland, for $2800, and conveyed the same to him by a deed of that date. The deed was delivered to and accepted by Monholland, and contained the following clause: “ Subject however to a mortgage made to the said John Blyer, by the said Samuel and Huldah his wife, for twenty-five hundred dollars, ($2500) dated the twenty-third day of November, 1835, and recorded in the office of register of the city and county of New York, in liber 195 of mortgages, page 259, as by reference thereto will more fully appear; (which the said party of the second part hereby assumes and agrees to pay.)”

Monholland paid the balance of the consideration, $300, to Fitz Randolph at the execution of the deed. He went into the

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immediate possession of the lot, and paid interest to the complainant on his mortgage for several years.

In a hill to foreclose the mortgage, filed in 1844, these facts were stated, and the complainant claimed to make Monholland liable for any deficiency there might be in the collection of the mortgage debt. The latter put in an answer, stating that he bought only the equity of redemption in the lot, subject to the mortgage, and that he was not liable to pay any of the debt. He also set up the statute of frauds as a bar to any supposed liability by reason of his assumption of the mortgage.

He introduced some testimony in support of his allegation as to the purchase, which is alluded to in the opinion. The cause was heard on the pleadings and proofs.

D. P. Hall, for the complainant.

J T. Brady, for the defendant Monholland.

is sufficiently established by the testimony, that the deed from Fitz Randolph to Monholland, expressed their agreement in relation to the mortgage in question.

The deed comes from the possession of the grantee, containing the assumption of the mortgage. This throws upon him the burthen of proving that the clause was interpolated, and that he did not in fact agree to pay the mortgage.

Some testimony has been taken on this point, and it establishes rather than overthrows, the effect of the deed. Fitz Randolph says that he sold the lot to Monholland for $2800; and that the latter paid him $300 of the price, and agreed to see the mortgage of $2500 paid. The deed corresponds precisely with this agreement ; and if it were true that Monholland heard the deed read before the assumption was inserted, and never heard it read after-wards, it would not do away with the fact that such an agreement was made. But there is no proof that he knew any thing about the contents of the deed before it was delivered to him duly executed, and with the clause inserted. Nor is there proof that he did not at the time of the delivery of the deed, know its con

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tents fully. The law implies such knowledge from his acceptance of the instrument and acting under it. The fact that his daughter who is his principal clerk, never read this portion of it to him, is not sufficient evidence to rebut that legal presumption.

The complainant’s mortgage was a part of the consideration which Monholland agreed with Fitz Randolph, to pay for the land. It was a part of the price ; and the latter being indebted in that amount, to the complainant, and the debt being a lien, Monholland agreed with Fitz Randolph to pay such amount to to the complainant. It was therefore a debt due from M, to Fitz Randolph, payable by the arrangement between them, to the complainant.,

It was a simple contract debt, for lands sold and conveyed by the one to the other. The effect of this arrangement in equity, as between them, was to make Fitz Randolph the surety of Monholland, in respect of the debt due to the complainant.

As between them and the complainant, it is immaterial whether he was to,regard the relationship of principal and surety between them. It sufficed for him that he held this mortgage debt against Fitz Randolph, and that the latter had obtained the obligation of Monholland to himself, to discharge that debt. This * obligation enured in equity to the benefit of the complainant. The case of Curtis v. Tyler and Allen, (9 Paige’s R. 432,) is directly in point.

The obligation is not enforced, as being made by Monholland to the complainant, for the payment of Fitz Randolph’s debt; but as a promise by M. to Fitz Randolph to pay to him $2500, by paying that sum to the complainant in discharge of his debt; which promise the complainant, as the mortgage creditor of Fitz Randolph, is equitably entitled to lay hold of and enforce, under the equity of the provision in the revised statutes relative to the foreclosure of mortgages in chancery. (2 R. S. 191, § 154.)

The counsel for the defendant, in an able and ingenious argument, contended that the promise of Monholland was to answer for the debt of another, and the deed not. being signed by him, the promise was void by the statute of frauds. In my view of the case, the point is inapplicable.

The complainant is entitled to a decree for the foreclosure and

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sale of the lot mortgaged, and that Monholland pay the deficiency of his debt and costs.