Roberts v. Fitzallen
Before: Chipman
Synopsis
Fokeclosuoti of Mortgage—Statute of Limitations — Assumption of Mortgage.—In this state, where the grantee of a mortgagor assumes the payment of the mortgage as part of the purchase price, he becomes, as to the mortgagor, the principal debtor, and the mortgagor becomes the surety, and the liability of the grantee in such case is the indebtedness secured to be paid by the mortgage which is to be enforced against him by foreclosure, and judgment for the deficiency; and the statute of limitations which runs against his obligation is that -which attaches to the mortgage obligation, and not to the promise to pay the mortgage as a new and independent agreement.
Id.—Liability not Secured by Mortgage—Attorney’s Fee—Deficiency Judgment against Grantee.—The grantee, by assuming the mortgage assumed only such liability as was secured by the mortgage; and a mere provision in the note for an attorney’s fee,'- which is not made a lien upon the land by the mortgage, cannot warrant the including of such attorney’s fee in the deficiency judgment against the grantee.
CHIPMAN, C. Action to foreclose a mortgage. Defendants demurred to the complaint on the ground that the action was .barred by the statute of limitations. (Code Civ. Proc., secs. 336, [483339], 343.) The demurrers were overruled, and defendants failing to answer, their default was duly entered and judgment passed for plaintiff, from which defendant Wells appeals on the judgment-roll alone.
It appears from the complaint that defendant Fitzallen executed his note and mortgage to one L. F. Davis, August 23, 1889; the note was made payable three years from date, “together with .a counsel fee of fifty dollars due upon filing complaint on said note”; the note was indorsed by defendant Isham as guarantor. On April 14, 1890, Fitzallen, the mortgag^ sold the mortgaged premises to defendant Wells, who, “as part consideration and as a part of the purchase price of said real estate, assumed and undertook the payment of said mortgage”; that the said assumption was expressed in the body of the deed by said Fitzallen to said Wells in the following words: “The grantee assumes and agrees to pay a mortgage of date August 23, 1889, to one L. F. Davis, ■and recorded,” etc.,' being the mortgage in suit.- As part of the same transaction the said Fitzallen and Davis signed the following agreement:
“April 14, 1890.
“In consideration of five hundred dollars cash in hand and une hundred dollars value in stock of cattle to be furnished me by July 1st next, I hereby agree to transfer to Edwin A. Wells, by his assuming all mortgages thereon, my one hundred and sixty acres of land pre-empted by me and adjoining partially A. H. Isham’s pre-emption and McCann’s land.
“CHARLES FITZALLEH.
"Accepted: Edwin A. Wells.”
The land referred to in this agreement was the mortgaged premises. Plaintiffs are holders of the note and mortgage by .assignment from Davis. The complaint was filed July 29, 1895, and the amended complaint September 7, 1895. The court included in the judgment fifty dollars as attorney’s fees, and directed a deficiency judgment against Davis-
1. Appellant claims that his liability accrued April 14, 1890, when he assumed and agreed to pay the mortgage as part of the purchase price of the property; that his obligation was a separate and distinct undertaking, disconnected from the original prom
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