Ward v. De Oca
Before: McFarland
Synopsis
Mobtgages—Foeeclosube—Deficiency Judgment—Quitclaim Deed fbom Mobtgagob—Nonliability to Mobtgagee—Assumption of Mobtgages by Subsequent Gbantbes—Lack of Pbivity.—A quitclaim deed from the mortgagor of the mortgaged premises, in which no reference is made to the mortgages thereupon, imposes no personal liability to the mortgagee upon the person receiving it; and a subsequent deed of grant from him, reciting that the grantee did “assume and agree to pay” the mortgages, and another deed of grant from the grantee to another grantee containing a similar recital, do not create any privity between the subsequent grantees and the mortgagee, or impose upon them any personal liability to the mortgagee, nor can either of such subsequent grantees he subjected to a deficiency judg- , ment upon foreclosure of the mortgages.
Id.—Liability of Gbantee of Mobtgagob Assuming Mobtgage Debt — Subetyship—Limits of Rule—Gbantob must be Liable.—The right of a mortgagee to recover a deficiency judgment directly against the grantee of the mortgagor who has assumed to pay the mortgage debt, springs from the rule • of equity that' a creditor is entitled to the benefit of any obligations or securities given by his debtor to one who has become surety of such debtor, for the payment of the debt; but this principle is only applicable to a case where the grantor is personally liable for the mortgage .debt, and does not apply where no such liability exists.
Id.—Findings—Absence of Notice of Liability of Gbantob—Assumption of Liability as to Land Only—Liability of Gbantob as Agent of Mobtgagee Immatebial.—Where the court found upon sufficient evidence that neither of the subsequent grantees had any notice at the time of his conveyance of any personal liability to the mortgagor of the person who received the quitclaim deed from him, and that it was not intended that either of such grantees should assume or pay the notes described in the mortgages, but merely that they should remain liable for the mortgages to the extent of the real estate only, the court was correct in not decreeing a deficiency judgment against such subsequent grantees, and it is immaterial that the person who received the quitclaim deed acted as agent for the mortgagee for the investment of his money in the agent’s possession, or was involved in liability to the mortgagee growing out of the confidential relations between them.
McFARLAND, J. This action was brought by the plaintiff, Ward, to foreclose certain mortgages executed by the defendant, Mathews, to the plaintiff to secure certain promissory notes given, by Mathews to plaintiff, aggregating two thousand four hundred dollars. Maria de Oca and her husband, William Vickery, and J. P. Humphreys were made defendants, and a deficiency judgment was sought against them in the event that the proceeds of the sale of the mortgaged premises would not satisfy the mortgage debt, upon the theory that they were subsequent grantees of the mortgaged premises, and therefore liable for a deficiency judgment. Joseph Call and his wife were also made defendants, as claiming some interest in the premises; but they disclaimed and went out of the case. A decree of foreclosure in the usual form was entered, which provided for a deficiency judgment against defendants Mathews and Humphreys; but the court refused to decree a judgment against the defendants De Oca and Vickery. Prom this judgment the plaintiff and the defendants Humphreys and Mathews appeal, and also from an order denying their motion for a new trial. The ground of the appeal is, that the court should have entered the deficiency judgment against the respondents De Oca and Vickery.
The appellants, Mathews and Humphreys, filed answers admitting the truth of the averments of the complaint, and prayed, that if the property should not sell for enough to pay the mortgage debt that a deficiency judgment should be rendered against the respondents De Oca and Vickery. Therefore, no question arises as to the correctness of the decree as against said two defendants; and the only question is whether or not the court erred in refusing to decree the deficiency judgment against the respondents De Oca and Vickery.
[104]The facts as to the conveyances of the mortgaged premises between the parties are as follows: The mortgages were executed by Mathews to the plaintiff; Mathews afterward executed a quitclaim deed of the premises to Humphre3s, in which deed there was no mention of the mortgages; afterward Humphreys conveyed the premises to the respondent, Maria de Oca (whose name was then La Pierce), and the deed of conveyance contained the recital that she did "assume and agree to pay” the said mortgages; afterward the respondent De Oca and her husband conveyed the premises to Vickery, and the conveyance contained a recital that it was "subject” to the mortgages, and that the grantee assumed and agreed to pay the same. These two last conveyances were in form statutory grant deeds.-
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