
    James Blass et al., as Executors, etc., Resp’ts, v. Georgianna B. S. Terry, App’lt
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    1. Trial — Direction of verdict.
    A request by both parties for a direction of a verdict waives the right to have any question submitted to the jury, where neither party subsequently asks for the submission of any fact.
    2. Mortgage — Deficiency—Liability.
    The grantee of an undivided half of the debt which he assumes, is liable for the deficiency on a foreclosure sale only to the extent of half of the mortgage debt after deducting half of the price bid for the land.
    
      Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes.
    On August 24, 1887, Cornelius 0. Howell made to John W. Fuller and James Blass a mortgage upon certain land in Lucas county, Ohio, to secure the payment of his three promissory notes of that date, respectively, for the sums of $1,500, $3,750, and $3,750, payable August 24, 1887, 1888, and 1889. Howell made to Georgianna B. Terry and Sarah L. Schofield a deed of the undivided half o£ such land. Following the granting provision of the deed was the following : “I hereby covenanting that the title so conveyed is clear, free, and unincumbered, and that I will warrant and defend the same against all claims whatsoever; it being understood and agreed that the grantees herein, Georgianna B. S. Terry and Sarah L. Schofield, as part of the purchase price herein, assume and agree to pay thirty-seven hundred and fifty dollars of the mortgage incumbrance on the above-described property, together with the interest thereon. The balance of said incumbrance is to be paid by the grantor, Cornelius C. Howell, herein ; and the covenant of warranty herein, on his part, extends, so far as said mortgage is concerned, only to the half of said mortgage which is to be paid by him, the said Howell.” In an action for the foreclosure of the mortgage, a decree was perfected in the court of common pleas of Lucas county, Ohio, June 18, 1889, by which it was determined that there was then due and unpaid on the mortgage debt $7,865.63, and a sale of the premises directed. They were sold on August 31, 1889, for $4,200, leaving a deficiency of $3,965.28. This action was brought against those grantees in the deed to recover the amount of such deficiency, with which they were alleged to have become chargeable. The defendant Terry alone defended.
    
      Charles A. Pooley, for app’lt; L. L. Lewis, for resp’t.
   Bradley, J.

— On the motion for nonsuit the defendant’s counsel sought to raise the question that the action could not be maintained in behalf of Anna B. Fuller, as executrix, because her appointment as such was only by an order of the probate court of Lucas county, Ohio, and it is so urged here. The fact that she was appointed by the order of that court appears upon the face of the complaint The defendant at first took, the objection, by demurrer, that she had not legal capacity to sue, but it appears that before the trial the objection thus taken was waived. It therefore is not available on this review.

It is insisted that the deed was not delivered to or accepted by the grantees named in it, that they never consented to assume liability to pay any portion of the mortgage debt, and that the clause to that effect in the deed was inserted without any permission on their part. The delivery and acceptance of a deed are essential to its validity. The record of it is only prima facie evidence that it has been delivered and accepted, and may be rebutted. The deed was recorded in the county where the land was situated. There is no evidence, other than such as may be derived from inference, that the deed camo to the hands of the grantees or of their husbands, who transacted the business in the names of their wives, with the grantor, in relation to the land. There is, however, evidence tending to prove that the purchase was made in the names of Mrs. Terry and Mrs. Schofield, and that they understood that it was done, and that a conveyance of the land was to be made to them. But it does not appear by whom the deed was-taken or transmitted to the county recorder for record. If, however, the clause in the deed purporting to create an assumption on the part of the grantees of payment of a-portion of the money secured by the mortgage was inserted in the deed without their knowledge or consent, and not, in some sense, approved by them, they did not become charged with liability by it. Kilmer v. Smith, 77 N. Y. 226; Deyermand v. Chamberlain, 88 id. 658; Kelly v. Geer, 101 id. 664. The defendant Terry and her husband testified to the effect that the assumption clause was put into the deed without their knowledge or consent, and that they never advised of it until action was commenced. There is evidence tending to prove that the deed, wdien and as drawn, was' read over in the presence of Mr. Terry, who conducted the business of the purchase for and in the name of his wife, and there was some other evidence bearing upon the subject of his knowledge in that respect. The question, therefore, whether or not the defendant Terry was chargeable with knowledge of such assumption clause, and with having assented to it, was one of fact. No request was made to submit any question to the jury. At the close of the evidence the counsel for each of the parties requested the direction of a verdict. By so doing, and by not asking it, they waived the right to have any question submitted to the jury, and treated the evidence as presenting only questions of law. Thereupon, the court, in directing the verdict, must be deemed to have determined the questions of fact against the defendant. Koehler v. Adler, 78 N. Y. 287; Kirtz v. Peck, 113 id. 222; 22 St. Rep. 733.

The defendant’s counsel objected to the introduction in evidence of the judgment roll in the foreclosure action, and it is also-insisted that as there was no allegation in the petition in that action charging Mrs. Terry and Mrs. Schofield with liability, and, the judgment for deficiency was against Howell, the mortgagor-they cannot be charged with it. Assuming that the judgment was not legitimately evidence against the defendant, she was not prejudiced by it. The assumption clause in the deed purported to-create liability of the grantees of the extent of $3,750 and interest. This would have been the apparent situation represented if the judgment roll, including the sheriff’s qertificate of sale, had not been introduced. This reduced the amount of their liability, so far as the proceeds of the sale were applicable to it. As those grantees were not residents of the state of Ohio, or personally served with process in that state, in the forclosure action, it was, as against them, a mere proceeding in rem, and they could not be personally charged by any judgment which might be rendered in it against them. It would, in that respect, have been a nullity. There was therefore neither occasion nor propriety in seeking in that suit, by allegation of their liability upon the assumption clause, to charge them personally upon it by the decree. In that respect the mortgagor alone was there chargeable and charged with the deficiency, between whom and the plaintiff he was liable for the entire amount of it. The defendant was at liberty to prove that the amount due and upaid on the mortgage debt was less than that adjudged by the decree against Howell, the mortgagor, or to prove that the deficiency was less than the amount appearing by the record of the decree, and of its execution in that action. And defenses existing against Howell were available to the defendant, as against the plaintiffs, in so far as they rested in fraud, in inducing the grantees to make the purchase and take the conveyance, or in a want of title in him to convey by the deed, or the failure of consideration for the assumption of liability to pay such portion of the mortgage debt. Dunning v. Leavitt, 85 N. Y. 35; Crowe v. Lewin, 95 id. 423; Loeb v. Willis, 100 id. 231. But the contention that, in view of his covenant in the deed, the default in payment by the grantor of the part of the mortgage debt for him to pay constitutes a defense for the defendant, cannot be sustained.

The only other question requiring consideration has relation to the amount of recovery. The defendant and Mrs. Schofield had title to an undivided half of the land subject to the mortgage. They assumed, by the clause of the deed, the payment of $3,750 of the mortgage debt. At the time of the foreclosure the amount remaining unpaid was in the two notes of the mortgagor, of $3,750 each and the amount by the decree adjudged unpaid was $7,865.-63, with interest at the rate of six per cent from June 17, 1889. The sale August 31, 1889, produced the net sum of $3,997.35, to apply, and it was applied, on the mortgage debt. The deficiency was $7,865.63, and interest from June 17 to August 31, 1889, $97, less $3,997.35, the net proceeds of the sale, $3,965.28. The sale was made of the mortgaged premises, as an entirety. Half of the proceeds was the product of the undivided half to which the defendant and Mrs. Schofield had the title, and they were liable for only one-half the mortgage debt then unpaid. They were therefore entitled to the benefit of one-half of the proceeds of the sale applicable to the reduction of the mortgage debt. Such portion, in legal contemplation, as well as in fact, was paid from their share of the property. The trial was had April 26, 1894, and the verdict was $4,949.36.

The judgment should be reversed, and a new trial granted, costs to abide the event, unless the plaintiffs stipulate to reduce the recovery, exclusive of costs, $2,536.08, and in that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.

All concur.  