Thomson v. Bettens

Foote, C. The plaintiff, under the name of Eva R. Casady, before she became by marriage Mrs. Thomson, sold a piece of land to Philip A. Bettens, Sen., gnd took his promissory note for three thousand two hundred dollars, payable at a future date, with interest, and secured to be paid by a mortgage upon the land transferred by deed to Bettens. Bettens transferred it by deed to E. S. Babcock.

The note remaining unpaid when due, Mrs. Thomson endeavored to foreclose her mortgage, and to obtain a deficiency judgment for any balance that the property might not bring at sheriff’s sale against Bettens and Babcock.

The ground upon which it is sought to hold Babcock for a deficiency judgment is, as set out in the complaint, that at the date of the execution of the note and mortgage by Bettens, and of the date of the transfer of the property by deed from Bettens to Babcock, the latter “assumed and agreed with said Bettens to fully pay and discharge at maturity the promissory note and mortgage set forth herein, and all the debts and obligations evidenced thereby.”

[84]The court below found that no such assumption or agreement was made by Babcock, and thereupon refused to render any deficiency judgment against him, but ordered the mortgage foreclosed, and a deficiency judgment against Bettens.

Babcock, in his answer, denied that he had undertaken or assumed to pay the note and mortgage.

Bettens, in his answer, endeavors to relieve himself of all responsibility in the premises, except as to the foreclosure of the mortgage as against the property involved, by claiming that he was merely the agent of Babcock, and bought the property for him, and that his principal was therefore responsible for the payment of the note and mortgage.

Mrs. Thomson, when on the stand as a witness, declared that she never knew Babcock as a principal in the transaction, either from himself or Bettens.

Bettens, who, upon this state of facts, was held by the court for the deficiency, is not appealing or complaining.

There is no direct evidence at all by which it could be inferred positively that Babcock did agree with Bet-tens to assume and pay the note and mortgage, except what at a casual examination might seem such,—that of Bettens himself. But when we come to examine closely what he says in the light of the defense he made, — that is, that Babcock was principal and he agent, — we cannot say that such agreement was made.