Opinion
Department Two
Appeal from a judgment of the Superior Court of Tulare County. Wheaton A. Gray, Judge.
COUNSEL:
There is no statement in the complaint that the grantee signed the note or agreed to pay it, and the plaintiff cannot maintain an action upon a contract made between other parties, not expressly made for his benefit. (Chung Kee v. Davidson , 73 Cal. 522.)
W. Rigby, and Aylett R. Cotton, for Appellant.
C. L. Russell, for Respondent.
The recital in the deed of the agreement by the grantee to pay the mortgage indebtedness is sufficient to place the personal liability upon the grantee. (Burbank v. Roots, 4 Col. App. 197; 1 Jones on Mortgages, secs. 748, 752; Biddel v. Brizzolara , 64 Cal. 354, 363; Pellier v. Gillespie , 67 Cal. 582; Thomson v. Bettens , 94 Cal. 82; Williams v. Naftzger , 103 Cal. 438; Campbell v. Clay, 4 Col. App. 551; 2 Jones on Mortgages, secs. 748, 1711, 1713; 3 Pomeroy's Equity Jurisprudence, sec. 1206; Heid v. Vreeland , 30 N. J. Eq. 591; Locke v. Homer , 131 Mass. 93; 41 Am. Rep. 199.) By the agreement the grantee became the principal debtor and the mortgagor the surety. (Williams v. Naftzger, supra; 1 Jones on Mortgages, secs. 741, 752; 3 Pomeroy's Equity Jurisprudence, sec. 1206.)
JUDGES: Haynes, C. Searls, C., and Vanclief, C., concurred. McFarland, J., Temple, J., Henshaw, J.
OPINION
HAYNES, Judge
The plaintiff is the assignee of a note and mortgage executed by defendant Madden. Afterward, Madden conveyed the mortgaged premises to appellant, E. M. Root, and this action was brought against Madden and his grantee and others to foreclose said mortgage. Plaintiff obtained a decree for the sale of the mortgaged premises with the provision that, if the sale thereof should not satisfy the amount found due, that a judgment for the deficiency be docketed against the defendants Madden and Root; and from this judgment Root, the grantee of Madden, appeals upon the judgment-roll and a bill of exceptions.
The deed of conveyance from Madden to Root recites that it was made subject to the mortgage held by plaintiff, that said mortgage is a lien on said premises, "and said second party hereby assumes and agrees to pay the said amount due thereon as a further consideration for this conveyance."
The only questions arising in the case are: 1. Whether appellant is liable for any deficiency in case the premises should not satisfy the mortgage; and 2. Whether he is liable for costs in the action. It is well settled that the grantee of the mortgaged premises who not only takes the land subject to the mortgage, but assumes its payment, is liable to the mortgagee for any deficiency which may remain after exhausting his security under the mortgage; though as to the ground upon which this liability is placed the authorities are by no means uniform. That he is so liable, see Biddel v. Brizzolara , 64 Cal. 354; Pellier v. Gillespie , 67 Cal. 583; Thomson v. Bettens , 94 Cal. 82; Williams v. Naftzger , 103 Cal. 438; Keller v. Ashford , 133 U.S. 622.
Appellant seems to rely upon the point that he did not promise to pay the note secured by the mortgage, and that his promise was not made for the benefit of the mortgagee. It may be that there is no such privity of contract between the mortgagee and the grantee of the mortgagor resulting from the acceptance of the deed, nor any such promise for the benefit of the mortgagee as would sustain an action at law against him.
[41 P. 1093] The best considered cases place the liability of the subsequent grantee of the mortgaged premises who has assumed the payment of the debt upon the ground that, as between him and his grantor, he becomes primarily liable for the payment of the debt secured by the mortgage, and his grantor becomes his surety; that, though as between the grantor, Madden, and the plaintiff, the mortgagee, Madden is the principal debtor, yet in equity the creditor is entitled to the benefit of all securities or collateral obligations that his debtor may have acquired for the payment of the debt, and the creditor may, in his action to foreclose the mortgage, treat the mortgagor's grantee, who has assumed the payment of the debt, as a principal debtor, and hold him liable for any deficiency for which the mortgagor would be liable on his express promise. (Williams v. Naftzger, supra, and cases there cited.)
It results that the court did not err in authorizing the deficiency judgment to be docketed against the appellant.
That appellant is liable for costs in the action is also clear. He held the title to the land, and was therefore a necessary party to the action, and was the only defendant who answered or made any contest, and his only contest was based upon his desire to escape personal liability for a deficiency. Having failed in that defense, he, as well as Madden, the maker of the promissory note and mortgage, is liable for costs, and the court did not err in the judgment rendered in that regard. The appeal is without merit, and the judgment appealed from should be affirmed.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.