Banta v. Rosasco

[422]

LEMMON, J.,

pro tem.

Plaintiff, as executrix of the will of Joseph Rosasco, deceased, brought this action to foreclose a mortgage executed to Joseph Rosasco, to secure the payment of a promissory note in the sum of $10,000. The note and mortgage were executed by the defendants, Charles an$ Mary Rosasco, on August 20, 1927. Subsequently, and on August 10, 1929, A. E. Taeeker purchased the property, the subject of the mortgage. Prom the decree of foreclosure which provides for the docketing of a judgment against Charles and Mary Rosasco and A. T. Taeeker for any deficiency remaining after the sale of the mortgaged premises, Taeeker alone prosecutes an appeal.

In the negotiations leading up to the purchase of thé property by Taeeker, he was represented by two real estate agents. These agents agreed orally that Taeeker would assume and discharge the mortgage. Appellant contends, however, that there is no evidence that the agents were authorized tb bind him in this regard.

It is well settled that a grantee who assumes and agrees to pay the mortgage debt is liable to the mortgagee for the payment thereof, upon the rule in equity that

k

creditor is entitled to the benefit of all obligations or securities given by his debtor to one who has become a surety of the debtor for the discharge of the debt. The promise of the grantee may be made orally, or it may be implied. The rule, well established in this regard, is expressed in

Hopkins

v.

Warner,

109 Cal. 133 [41 Pac. 868], as follows: “It is not necessary that there should be a formal promise on th£ part of the grantee to pay the mortgage debt, in order to iender him liable therefor, if his intention to assume the debt appears from a consideration of the entire instrument. The obligation may be made orally or in a separate instrument: it may he implied from the transaction of the parties,! or it may be shown by the circumstances under which the purchase was made, as well as by the language used in the agreement."