Bishop v. Douglass

25 Wis. 696

• Court: Wisconsin Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Paiíte, J.

This is a demurrer to a complaint for the foreclosure of a mortgage. The complaint alleges that the appellants purchased the property from the mortgagor subject to the mortgage, and that the deed to them contained a clause by which they assumed and agreed to pay it. So far as appears from the complaint, they are proceeded against as subsequent purchasers in order to bar their right of redemption, and the plaintiff also asks a personal judgment against them for the deficiency, if any, that may arise on a sale.

In support of the.demurrer it is claimed that there is a misjoinder of causes of action, and that the appellants, even though liable, on- the clause of the deed above referred to, for any deficiency, cannot be made «so liable in this action. It is said that they are not within the provision of chapter 243, -Laws of 1862, which enacts, that, “if-the mortgaged debt be secured by the obligation or other evidence of debt, executed by any other person' besides the mortgagor, the plaintiff may make such person a party,” etc. It is said that as they did not sign the deed to themselves, therefore they did not £Cexecute” any evidence of debt within the meaning of this statute. But this interpretation is too literal. It being the settled law that a party who accepts a conveyance or other instrument, imposing upon him, as a condition to the right he acquires by it, some obligation, becomes bound by such acceptance to perform the condition, such a state of facts may well be held to be an execution of an evidence of debt, within the general meaning of this act. It meant to include every mode by which a party could so connect himself with an obligation to pay, evidenced by writing at least, as to become bound in law.

A further ground of demurrer was, that it appears on the face of the complaint that the claim against the appellants for the deficiency is barred by the statute of limitations. This was the question principally discussed, and which counsel on both -sides requested us to decide.

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We are of the opinion that if the demurrer had been confined to that portion of the complaint, it should have been sustained for this reason. It depends wholly upon the question whether the contract by the appellants was a simple contract, or was one under seal. And we think the weight of authority and the result of the argument upon principle concur in holding that it is but a simple contract. It is so, for the reason that the party has nowhere bound himself under seal. The seals of the grantors in the deed to him are not his seals. The instrument does not profess to bind him under seal. True, it contains a clause that he assumes and promises to pay the mortgage debt. But it does not contemplate that he is to become bound by that promise by signing and sealing the instrument, but only by accepting it and the benefit under it. It is therefore a mere promise which acquires its binding force by acts in pais, without any signature or sealing whatever. And it seems impossible upon such facts to say that the party has promised under seal. In addition to the authorities cited in the appellants’ brief upon this point, see Davis v. Golston, 8 Jones (Law), 28, and the cases there cited.

There are some cases, and some intimations in the books, that would support the position that an action of covenant might be sustained against the appellants upon the facts here presented. But the other class of authorities have the better reason. Those cases in New York, cited by the respondent, using the broad language that ‘‘ the acceptance of a conveyance containing a statement that the grantee is to pay off an incumbrance, binds Mm as effectually as though the deed had been inter partes, and had been executed by both grantor and grantee,” were considering merely the question whether the grantee, in such cases, was bound at all, but not the special character-of that obligation. In stating that he was bound, they used that strong language that he was bound as effectually as though he had executed the deed. But it by no means follows, that, if they had been called upon to decide as to the exact nature of his contract with reference to the statute of limitations, they would have held that his contract would have been of the same character in the two cases. We think the personal liability of the appellants to pay the mortgage debt, upon the facts stated in the complaint, arose only out of a simple contract ; and, this being so, it was conceded that all claim against them for any deficiency was barred by the statute.

But they seem to have been proper parties, as subsequent purchasers of the mortgaged property, for the purpose of barring their right of redemption., It does not appear that they have conveyed it away. And, as the demurrer was to the whole complaint, it was for this reason properly overruled; though, if it had been confined merely to the claim against the appellants for a deficiency, it should have been sustained.

By the Court.. — The order is affirmed.

APPENDIX A.

The opinions in the following canses were overlooked when the other cases of the same terms, respectively, were published:

JUNE TERM, 1862.

The complaint shows that the whole mortgage debt became due before July 1, 1856, and that the deed to the appellants was made and delivered August 15,1857; and this action was commenced in 1869.