Winans v. Wilkie

1 N.W. 1049, 41 Mich. 264, 1879 Mich. LEXIS 832

• Court: Michigan Supreme Court
• Decided: July 1, 1879
• Status: Published

Opinion

Marston, J.

Where mortgaged premises are sold and the deed of conveyance contains, a clause that the granteeassumes all indebtedness on the premises, and he after-wards takes an assignment of the mortgage to himself and then assigns to a third party, can such third party go into a court of chancery and foreclose such mortgage ? Such is the only question presented in this case.

Where the words inserted in the deed, and which it is claimed impose a legal obligation on the grantee to pay the existing incumbrances, are of doubtful meaning or ambiguous, evidence showing the value of the premises, or the agreed consideration therefor, and whether a sufficient or any part of the same was retained by the grantee for the purpose of paying the mortgage indebt-. edness, would be material as aids in the construction thereof. Tichenor v. Dodd, 3 Green Ch., 455.

No such evidence has been introduced in this case,. and while there is no express promise by the grantee to pay the existing incumbrances, yet there is sufficient to cast upon him a clear legal duty to pay the same. The words in the deed were “said party of the second part assuming all indebtedness on the same.”

A person may purchase and accept a conveyance of mortgaged premises subject to the incumbrances thereon, and incur thereby no personal responsibility. If the mortgage debt should not be paid, the grantee, upon a foreclosure sale, would be in danger of losing the premises. This would be the extent of his loss. Where, however, he takes a conveyance, assuming therein the incumbrances, he thereby becomes personally responsible for the debt, equally as though an express promise to pay was contained in the deed which he accepted, within the principles laid down in Crawford v. Edwards, 33 Mich., 354, and Miller v. Thompson, 34 Mich., 10.

To assume an indebtedness is to take it to one’s self or be willing to bear it, and when a person so agrees by accepting a deed of the premises containing such a clause, a personal liability is thereby incurred which may be enforced in a court of chancery.

It follows, therefore, under the facts in this ease, the party assuming such indebtedness having taken an assignment of the mortgage, that the same was thereby extinguished and he could not thereafter assign the same to a third party and confer upon him any right to foreclose the same.

The decree must therefore be reversed and the bill dismissed with costs of both courts.

The other Justices concurred.