Shockley v. Roelli

Vinje, C. J.

The facts found by the trial court are sustained by the evidence, and the only question raised by the appeal is one of law. Are the Olsons personally liable for a deficiency judgment? They claim they are not because no deed assuming liability of the mortgage was executed or. delivered to them. 'The defense fails for two reasons: First, the agreement to pay a mortgage need not be in the deed. It may be in a separate instrument. Here it was contained in the land contract. That was sufficient. 4 Ballard, Ann. Law Real Prop. sec. 535; 3 Tiffany, Real Prop. (2d ed.) § 623; 14 Ballard, Real Prop. § 546; 2 Dev-lin, Deeds (3d ed.) § 1067. The promise may be enforced even though it is only an oral one. 4 Ballard, Ann. Law Real Prop. sec. 535; 2 Devlin, Deeds (3d ed.) § 1073. Second, the deed from the Roellis to Mrs. Lee was a substituted performance of the contract between them and the Olsons and bound the Olsons as effectively as though the deed had been to them. Webster v. Tibbits, 19 Wis. 438 . In this case A. agreed to convey land to B., but at B.’s request he conveyed it to- C. Held, that A. had performed *566 his contract with B. and could maintain an action against him for the unpaid purchase money.

In Pike v. Seiter, 15 Hun, 402 , we have a parallel case. Seiter entered into a written contract for the purchase of land and agreed therein to pay a mortgage on it. When it came time to deliver the deed, at Setter's request it was made to his wife. Held, Seiter was personally liable for a deficiency. See, also, 2 Devlin, Deeds (3d ed.) § 1072.

By the Court. — Judgment affirmed.