Weaver v. McKay

Temple, J. This action was brought to foreclose a mortgage executed by Margaret Griffith and R. B. Johnson to secure the payment of their note for four thousand five hundred dollars to plaintiff.

After the mortgage was executed and recorded appellants purchased the premises, and took a deed from R. B. Johnson, who had become the sole owner, in which was contained the following:

“This conveyance is made subject to that certain mortgage made by Margaret M. Griffith, a married woman, and R. B. Johnson to N. M. Weaver, dated February 10, 1891, for the sum of $4,500, and recorded in volume 79 of Mortgages, at page 433, records of Fresno Co., Cal., which said mortgage and the note secured thereby, and the interest due and to grow due thereon, the grantees herein hereby assume and agree to pay, discharge, and satisfy, and to hold grantees [grantors] herein harmless therefrom, as a part of the consideration of this conveyance.”

The deed was executed January 17, 1893, and was in performance of an agreement between Johnson and appellants made December 20, 1892. In that agreement it was stipulated that Johnson should receive from ap[548]pellants a described tract of land, in consideration of which, and of one thousand dollars cash, he would convey to appellants various tracts, and among them the mortgaged premises. Some of the other tracts were also encumbered. As to one, it was stipulated that it should be conveyed; subject to a mortgage of eighteen hundred and fifty dollars; as to the mortgaged premises in question here, that it should be conveyed “subject to the indebtedness thereon.”

It is contended that the deed does not accord with the agreement in this, that by the agreement appellants were to take the land subject to the mortgage, whereas by the deed they are made to assume the payment of the mortgage debt, and thereby to become liable to pay a judgment for deficiency if the land does not sell for enough to pay the debt. They aver in their answer that they were induced to accept the deed containing this stipulation by the fraudulent assurance of Johnson that it was exactly like the other deed, which was only subject to the mortgage. Upon this issue the court found for the plaintiff, and the finding is abundantly sustained by the evidence.

Appellants’ counsel contends, however, that because the agreement is set out in the answer in hsec verba, and its genuineness is not denied, it overcomes all other testimony upon the subject.