Vreeland v. Van Blarcom

The opinion of the court was delivered by Dixon, J.

Benjamin Geroe was the holder of a mortgage on lands of Anna M. Moses, securing a bond for $7,000, given by her and her husband to said Geroe. Subsequently, Moses and wife conveyed the lands to Reuben V. Brown, by a deed reciting that the land was subject to said mortgage, and adding the words,, “which said party of the second part assumes.” Thereafter Brown conveyed to the defendant, Hartman C. Vreeland, by a deed containing a clause to the effect that the grantee assumed the payment of the mortgage. The complainant, administrator of Geroe, seeks to hold Vreeland on said • assumption, for a deficiency due. on the bond after exhausting the mortgage security.

The defendant first insists that the covenant in the deed to-Brown did not bind him personally to the payment of the mortgage debt, and hence the covenant in the deed to the defendant did not enure to the benefit of the mortgagee. The claim is-that to assume a mortgage is not equivalent to an agreement to-pay the debt. The language, however, clearly imports that the covenantor takes something upon himself personally with reference to the mortgage. Presumptively, this must be something beneficial to his covenantees, else they would not have required it; and I can perceive no personal obligation beneficial to Mr. and Mrs. Moses which the parties could have intended that Brown should have assumed concerning this mortgage, except *533 the duty of payment, which rested upon them. The language of the covenant bound Brown, we think, to pay the mortgage. Sparkman v. Gove, 15 Vr. 252 .

This brings us to another position of the defendant, that Geroe’s representative cannot take advantage of this alleged promise of the defendant, because of the circumstances under which it was inserted in the deed.

The answer and testimony make plain thp following facts: That the defendant is, and for many years has been, mentally -imbecile; that Geroe had charge of his affairs, as his agent and quasi guardian; that Geroe mainly negotiated, on behalf of the defendant, the exchange of properties in which the deed containing the alleged assumption was given; that Geroe himself prepared the deed, and was present at its delivery; that the defendant had no knowledge of the clause binding him to pay the mortgage; and that the mortgage was not, so far as even the grantor, Brown, can recollect, a subject of conversation between either himself and Geroe, or himself and the defendant. These facts lead to the conclusion that Geroe, while acting as agent of the defendant, inserted this term in the contract between his principal and Brown, to increase his principal’s burdens for his own personal benefit, without the authority or knowledge of his principal, and without its being demanded by Brown. This conclusion establishes the invalidity of the complainant’s claim in this cause. An agent cannot exact of his principal any advantage growing out of a contract made by the agent in his principal’s name, unless the latter has expressly authorized or ratified it, with knowledge that such advantage would accrue. Story on Agency §§ 207, 210, 211.

Eor this reason the decree in the complainant’s favor, rendered on advice of the advisory master, should be reversed, and the bill dismissed, with costs.

Deoree unanimously reversed.