Hubbard v. Ensign

Carpenter, J.

The plaintiff exchanged certain real estate in the city of Hartford, subject to two mortgages, (the mortgages also covering other real estate of the plaintiff,) for certain real estate in the city of Brooklyn also subject to a mortgage. The deed from the plaintiff to the defendant, after describing the land and the mortgages thereon, contained the following clause: “ The above described property is alone to be holden for the payment of both of the above debts.” There is also an exception to the covenant against incumbrances as follows:—“ Except the above written mortgages of fifteen thousand dollars, which are a part consideration of this deed.” The mortgages were subsequently foreclosed, whereby the plaintiff lost the equity in other lands embraced in the mortgage and not included in the deed to the defendant. The plaintiff paid or satisfied the second mortgage after it had been foreclosed.

This action is brought on an alleged promise contained in the defendant’s deed to pay these mortgages, to recover the amount paid on the second mortgage and the value of the other property foreclosed.

The language of a deed poll may be such as to afford sufficient evidence of a promise by the grantee after the deed has been accepted by him; but, as the language is that of the grantor, doubtful or ambiguous expressions will not ordinarily be regarded as sufficient. In Foster v. Atwater, 42 Conn., 244 , the language, referring to the mortgages, is, “which with accrued interest the grantee assumes and agrees to pay and save me harmless from the same.” In Pike v. Brown, 7 Cush., 133 , the language is, “which said sum is a part of the consideration before named, and this deed is on condition that said Pike shall assume and pay said note and the interest thereon as they severally become due and payable.” In each of these cases there is a clearly expressed intention that the grantee should become personally liable.

An estate may also be given on condition, or the deed may contain some stipulation in the nature of a condition or proviso, that the grantee shall do and perform certain things. In such cases the condition or stipulation co-operates with *583 the grantee’s acceptance of the deed and imposes upon him the obligation named. Randall v. Latham, 36 Conn., 48 ; Elting v. Clinton Mills Company, 36 Conn., 296 . But those cases are not precisely in point. The question here is whether the defendant’s deed and its acceptence by him impose upon him a personal obligation to pay the mortgage debts.

In considering this question it is important to ascertain the intention of the parties. In this, as in other transactions, when that is discovered effect will be given to it if it can be done consistently with the rules of law. We are looking now for evidence of that intention in the language of the deed. In interpreting that language we are to place ourselves in the position of the parties as nearly as may be.

The parties have agreed upon the terms of an exchange and have come together to execute deeds and other writings to carry their agreement into effect. One thing agreed upon is that the defendant should personally obligate himself to pay the two mortgages, amounting to fifteen thousand dollars, and the scrivener is instructed to incorporate that agreement in the deed. We expect him to write in plain, unambiguous language, substantially as follows:—“ The grantee by accepting this deed agrees to pay both said mortgages and indemnify and save the grantor harmless.” That expresses the intention of the parties fully and leaves no room for question or doubt. That is a natural, obvious and easy thing to do. But instead of that he writes: “The above described property is alone to be holden for the payment of both of the above debts.” Is it to be supposed that any intelligent man, especially if he had the advice of an able and astute lawyer, would accept that as an evidence of such an agreement? In this connection it must be borne in mind that the deed is his instrument, is being prepared under his instructions, and, assuming such a contract to have been made, he will have no difficulty in having it inserted in clear and intelligible language. The fact that he did not do so, but in lieu thereof had a clause inserted that will bear another meaning equally well, if not better, is pretty conclusive evidence that no such agreement was in fact made.

*584 Bufe the question recurs, what does the language of the deed mean ? If we are right in our supposition that it did not mean to import a personal liability to pay the debts and save the plaintiff harmless, it is enough to defeat the plaintiff’s claim, and we are relieved of the necessity of determining its real meaning. But if it can be otherwise interpreted, and a meaning attributed to it which is more consistent with the conduct and situation of the parties, it adds greatly to the force of the argument that it does not mean what the plaintiff claims that it does.

At best the expression is ambiguous. To give it the most favorable construction for the grantee, and perhaps we shall be justified in doing that, its meaning may be that the plaintiff agreed that the land described in the deed, and that alone of all the defendant’s property, should be liable for those debts. That interpretation clearly excludes any personal liability, and all liability aside from the land conveyed.

But if that construction is inadmissible, it may mean that the grantee takes the land subject to the whole of the mortgage debts, and that he will not require any portion of the debts to be apportioned to other lands of the plaintiff embraced in the mortgage. This is in harmony with a subsequent clause which states that the mortgages of fifteen thousand dollars “ are a part consideration of this deed.”

To illustrate this view. Suppose the land conveyed to the defendant had been more than sufficient to pay both mortgages. Then doubtless the defendant would have paid them and would not have permitted a foreclosure. In that event the plaintiff’s other land would have been free of the incumbrances, and the defendant would have been bound by his agreement not 'to call on the plaintiff for a contribution. That probably was just what the parties contemplated, and that is what they intended by the language of the deed.

But an unlooked for contingency arose. The property depreciated so that the whole property mortgaged was barely sufficient to pay the mortgage debts, and the creditors insisted upon foreclosing the whole. The plaintiff now claims that the defendant agreed, in substance, that the land he received *585 should he sufficient to pay the mortgages, and if not, that he would pay the deficiency and thereby save the plaintiff harmless. That, as it seems to us, adds materially to the language used, and interprets it as if written, “ The above described property is alone to be holden for the payment of both of the above debts, and if it is insufficient for that purpose the grantee shall pay the deficiency.” We are not aware of any rule of interpretation that will justify such a construction.

But the plaintiff insists that under that clause in the deed which states that the mortgages are a part of the consideration, the defendant is liable for the amount of the second mortgage paid by the plaintiff. The plaintiff here assumes that the contract between the parties was a sale of the property for the consideration of $26,000 cash, while in fact the contract was to sell to the defendant the equity of redemption merely, and the consideration was not $26,000 in money, but the equity of redemption in certain property in Brooklyn. Thus the real transaction between the parties effectually repels any implication of a contract from that clause in the deed. That the real contract in pursuance of which the deed was given may be shown by parol is well established. Collins v. Tillou, 26 Conn., 368 ; Post v. Gilbert, 44 Conn., 9 .

The finding shows that the pai’ties “ stipulated and agreed that neither party should, by accepting any deed given in pursuance of said arrangement, assume any personal liability in respect to any mortgage on the premises thereby conveyed.” The objection that parol evidence cannot be admitted to prove this agreement cannot be sustained. The authorities just cited, and many others, are conclusive on that point. As we have seen, the defendant did not expressly agree to pay the mortgages, and the language of the deed alone is not sufficient to raise such a promise. And now the actual contract being shown, it emphatically negatives any such promise.

Judgment is advised for the defendant.

In this opinion Park, C. J., and Pardee, J., concurred; Loomis and Granger, Js., dissented.