Johnson v. Razy

[343]

SHAW, J.

The defendant James appeals on the judgment-roll from a judgment foreclosing a mortgage. The action was begun by one Arnold Vetter. Before the trial the mortgage was assigned to Anna M. Johnson and she was substituted as plaintiff.

The facts presented by the record are as follows: The defendant Razy, being at the time the owner of the land involved, executed a mortgage thereon to said Vetter to secure a note for one thousand five hundred dollars. Default having been made in payment of the note, Vetter began this action to foreclose the mortgage. The defendant James was made a party upon the allegation that he had some interest in the property. After the suit was begun Razy conveyed the land, subject to the mortgage, to Peter Johnson, who was the husband of said Anna M. Johnson. Thereafter Vetter assigned the mortgage to said Anna M. Johnson. The consideration for this assignment was paid from her separate funds and the mortgage thereupon became her separate property. The land held by Peter Johnson under his conveyance from Razy must be presumed to have been community property, although the record is silent on the subject. Before the trial Peter Johnson and his said wife, Anna M. Johnson, joined in a deed conveying the land to the defendant James. This deed expressly stated that the land was conveyed to James subject to the said mortgage, suit to foreclose which was then pending. By a supplemental answer James set up these transactions, and he now claims that by. reason of the deed from Peter Johnson and wife to James the mortgage became satisfied and he became vested with the entire interest in the property free from all liens and claims thereon of either of the parties to said deed. His theory is that since the deed purported to convey the fee it carried with it all lesser interests which she held in the land and liens which she held thereon including this mortgage lien, and that the provision in the deed itself that the grantee took the property subject to the mortgage was of no effect.

We cannot agree with this contention. The mortgage belonged to the wife as her separate property. The land belonged to the husband as community property. It does not appear that the wife received any consideration for the conveyance of the land by her husband to James going to her separate estate. As all presumptions must be indulged in support of the judgment and facts which are justly inferable