Solicitors' Loan & Trust Co. v. Robins

The opinion of the court was delivered by

Scott, J.

This action was brought to foreclose a mortgage on certain real estate, executed by the defendants Tyler and wife to the plaintiff. Subsequent to giving the mortgage they conveyed the land to respondent Samuel C. Robins. The deed excepted the mortgage in question from the warranty clause and contained a statement that the grantee assumed - and agreed to pay the mortgage debt. The complaint alleged this and also that the same was the community debt of Robins and his wife. This allegation was not denied by either of them, but they disclaimed any interest in the lands, and the court dismissed the action as to them, whereupon the plaintiff appealed.

No brief has been filed or appearance made by the respondents in this court, and we are called upon to decide the case on the brief and argument of the appellant. From the authorities cited, only one of which we shall call attention to, we are of the opinion that the plaintiff was entitled to a personal judgment against the respondents, Samuel C. and Helena Robins, enforcible against their community property and the separate propertjr of Samuel C. Robins, for any deficiency that might remain after selling the mortgaged property.

In Keller v. Ashford, 133 U. S. 610 (10 Sup. Ct. 494), it is held that, under the weight of authority, the mortgagee is entitled, in some form to enforce such an agreement against the grantee, on the ground that as between a mortgagor and his grantee in such instances the grantee becomes the principal for the payment of the debt, and as between them the position of the mortgagor is that of a surety, and that in equity a creditor is entitled to the benefit of any obligation or security given by the principal to the surety for the payment of the debt.

It is not necessary in this case to decide more than that the plaintiff is entitled to a deficiency judgment against the respondents Robins and wife, for that is all the plaintiff seeks.

The judgment is reversed and the cause remanded for disposition in accordance with the foregoing.

Hoyt, O. J., and Gordon, J., concur.