
    The New York Life Insurance Company, Pl’ff and App’lt, v. James Aitkin, Executor of Helen E. Aitkin, Deceased, Def’t and Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed May 6, 1889.)
    
    1. Deed—Assumption clause—Mistake in—When reformation of not NECESSARY.
    Where in the assumption of a mortgage clause in a deed of conveyance, a mistake appears on the face of the instrument itself, and where the intent of the parties can be ascertained without a doubt, the law will enforce the obligation according to its true legal construction; and there is no need of resorting to equity to reform the instrument.
    2. Same—Evidence—Parol to vary—When admissible—Patent mistake.
    In such action it was admissible for the plaintiff to show, on the trial, that no other mortgage held by the plaintiff could have been intended, because the plaintiff never held any other mortgage of the premises, and that subsequent to the conveyance to defendant’s testator of the premises, the defendant’s testator paid interest on the mortgage to the plaintiff. The rule that a contract cannot be contradicted or varied by paroi does not apply.
    3. Same—Claims not raised below cannot be considered on appael.
    The claim that the mortgaged premises were in New Jersey and that, therefore, the law of that state should be considered, cannot now be considered, because no such question was raised below. If there is a difference between the law of this state and of New Jersey, that point can be raised upon the new trial.
    Appeal by plaintiff from judgment 'entered on a dismissal of the complaint at a trial term.
    The facts are sufficiently stated in the opinion.
    
      Henry G. Atwater, for app’lt; Johnston & Johnston (.Edward W. S. Johnston, of counsel), for resp’t.
   Freedman, J.

This action is brought on an assumption clause in a deed.

On December 3, 1868, Phcebe T. Drew and John G. Drew, her husband, made a certain indenture of mortgage to the plaintiff whereby they mortgaged certain premises therein described to the plaintiff to secure the payment to plaintiff of the sum of $4,000 and interest.

On December 15, 1869, the said Phcebe T. Drew and John Gr. Drew conveyed the said mortgaged premises to John Gregg by a deed wherein he, Gregg, covenanted and agreed to pay the mortgage aforesaid.

On December 28, 1870, the said John Gregg and Phoebe Gregg, his wife, conveyed the said premises to Helen E. Aitkin. This deed contained an assumption clause in the following words:

“And that this conveyance is made, subject nevertheless to the lien of a certain mortgage made and executed by the said party of the first part to the Hew York Life Insurance Co., bearing date the 3d day of December, 1868, to secure the sum of four thousand (4,000) dollars, lawful money of the United States, with interest «thereon, which mortgage forming a part of the consideration money hereinbefore expressed, and having been deducted therefrom, the said party of the second hereby assumes and undertakes to pay and to-indemnify, and to save said party of the first part harmless therefrom.”

This is the assumption' clause on which this action is brought.

Helen E. Aitkin entered into possession of the premises so conveyed, and remained in possession as owner thereof for a considerable time thereafter. Subsequently she died, leaving a will which was duly admitted to probate by the surrogate of the city and county of Hew York, on the 16th day of March, 1875, and letters testamentary were issued thereon to the defendant, James Aitkin, the executor named in said will, who ever since has be,en, and now is, the sole executor of said Helen E. Aitkin.

On March 5, 1880, the said mortgaged premises were duly sold by decree of the court of chancery of Hew Jersey in a suit to foreclose the plaintiff’s mortgage. Hot enough was realized to satisfy the amount due thereon. The deficiency remaining due and owing to the plaintiff, for which the plaintiff holds no security of any sort, amounts to $1,590.80, with interest thereon from March 5th, 1880. To recover this sum and interest, the present action was brought.

At the trial, plaintiff’s complaint was dismissed, on the ground that in the deed to defendant’s testatrix, which contains the assumption clause sued upon, as above set forth, the description of the mortgage assumed is erroneous, and that paroi evidence was not admissible to correct the erroneous description, and to show what mortgage was intended to be assumed.

In this the learned trial judge erred. The description of plaintiff’s mortgage was in all respects correct, except as to-the name of the mortgagor. The party of the first part (i. e., John Gregg) could not have been such mortgagor, because at the time of the execution of the mortgage he was not the owner of the premises. Four thousand dollars has-been deducted from the purchase price on account of a mortgage on the property for that amount, and there was but one mortgage on the property, as it was understood by the parties, for there was a covenant that the premises were free from incumbrances, which, taken in connection with other parts of the deed, meant that there was no incumbrance but the mortgage mentioned. The payment of this mortgage was assumed, for there is no uncertainty or ambiguity as to the personal undertaking. After all this, the plaintiff was prepared to show, if it had been permitted, that no other mortgage held by the plaintiff could have been intended, because it never had but this one mortgage on the premises, and that subsequently Helen E. Aitkin paid interest to the plaintiff thereon. This evidence was admissible.. The object of the assumption clause was to have the grantee assume some obligation resting on the grantor. Gregg was liable for the amount of the mortgage because he had assumed it in the deed to him. If the words “made and executed by the party of the first part ” are construed to mean “ assumed by the party of the first part,” the description is perfect. Upon the whole case, especially with the aid of the rejected evidence, the intent of the parties is apparent without any doubt.

The case, therefore, being -one in which the mistake appears from the instrument itself, and where the intent of the parties can be ascertained without a doubt, the law will enforce the obligation according to its true legal construction, and there is no need of resorting to equity to reform the instrument. This precise point has been determined by this court, after the review of authorities, in Fairchild v. Lynch (42 N. Y. Supr. Ct. R. [10 J. & Sp.], 265), and a reference to that case is all that is necessary here.

The claim of the defendant that, inasmuch as the mortgaged premises were situate in the state of New Jersey, the law of that state should be considered, requires no examination now, because no such question was raised below. If there is a difference between the law of this state and that of New Jersey, of which the defendant can take advantage, it should be shown in some competent way upon the new trial.

The judgment should be reversed and a new trial ordered, with costs" to the appellant to abide the event.

Sedgwick, Oh. J., and O’Gorman, J., concur.  