McAndrew v. Sowell

163 P. 653, 100 Kan. 47, 1917 Kan. LEXIS 257

• Court: Supreme Court of Kansas
• Decided: March 10, 1917
• Docket: No. 20,444
• Status: Published

Opinion

The opinion of the court was delivered by

Mason, J.:

Mary McAndrew brought an action against W. L. Sowell and Mahlon Bishop, alleging in substance'that Sowell had executed to her a note secured by a mortgage on real estate, and had afterwards conveyed the land to Bishop by a deed, which the latter had accepted, in which the grantee assumed and agreed to pay the incumbrance. Bishop answered by an unverified general denial. On motion of the plaintiff the court, upon the pleadings, rendered a personal judgment against Bishop for the balance due on the mortgage debt. He appeals.

1. The appellant contends that in this state of the pleadings, in order to charge him with personal liability it was incumbent upon the plaintiff to prove that he had accepted the deed containing the agreement to pay the incumbrance. The execution of the deed was admitted by the failure to deny it under oath. (Civ. Code, § 110.) The execution of the deed included its delivery. (Clark v. Childs, 66 Cal. 87; 17 Cyc. 876; 3 Words & Phrases, pp. 2558-2559; 2 Words & Phrases, 2d series, pp. 378-379.) And its delivery included its acceptance by the grantee. (2 Words .& Phrases, p. 1960.)

2. The appellant also invokes the provision of the statute of frauds that no action shall be brought to charge a party to answer for the debt of another unless the agreement shall be in writing and signed by the party to be charged. (Gen. Stat. 1915, § 4889.) The acceptance of a deed in which the payment of an incumbrance is assumed is regarded as making the grantee the principal debtor, so that his promise is to pay his own debt, and not that of another, and the statute does not apply. (Neiswanger v. McClellan, 45 Kan. 599, 26 Pac. 18; 20 Cyc. 174; Note, 15 L. R. A., n. s., 1087.)

The judgment is affirmed.