
    Ella I. Williams, Respondent, v. Cornelius Van Geison, Appellant, Impleaded with Others.
    
      Assumption clause in a deed — not effective when the grantor is not liable — conveyance in fraud of creditor's — acceptance by the grantee — a deed given by such grantee is his act and not that of his grantor although given at the grantor’s request.
    
    An assumption clause contained in a deed of mortgaged premises does not render the grantee personally liable for the mortgage debt, unless the. grantor was himself liable for such debt when the deed was executed.
    Esther O. Hart, being the owner of certain premises, gave a bond and mortgage thereon- to one Williams. Thereafter Mrs. Hart, with intent to defraud her creditors, executed a deed of the mortgaged premises to her brother West and caused the same to be recorded. This deed was executed without the knowledge of West and did not contain any clause by which the latter assumed or agreed to pay the Williams mortgage. Subsequently Mrs. Hart informed West of the existence of the deed, and, at her request West and his wife executed a second mortgage upon the premises to secure a debt due from Mrs. Hart’s husband to one Butler.
    Three years later Mrs. Hart’s husband negotiated with one Van Geison for a sale of the - mortgaged premises for the sum of $8,500, §500 to -be paid in cash and §3,000 by the assumption of the Williams mortgage. At the request of Mrs. Hart, West executed a deed to Van Geison. Such deed contained a clause reciting that the grantee assumed and agreed to pay the Williams mortgage. During the time that the legal title to the mortgaged premises was in West, Mrs. Hart remained in possession of stich premises.
    
      MéLá, that the execution by West Of the Butler mortgage constituted an acceptance of the deed from Mrs. Hart to him and operated, as between himself and Mrs. Hart, to vest the title to the premises in him;
    That the execution and delivery of the deed to Van Geison was the act of West and not of Mrs. Hart, and that the consideration supporting the assumption clause contained in the deed from West to Van Geison moved from West and not from Mrs. Hart;
    That such assumption clause did not inure to the benefit of Williams, because West was not liable to Williams for the mortgage debt.
    Appeal by the defendant, Cornelius Van Geison, from a judgment ■of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 13th day of June, 1902, upon the decision of the court, rendered after a trial at the Orleans Special Term, adjudging the said defendant liable for a deficiency arising upon a foreclosure sale of mortgaged premises.
    
      William E. Hobby, for the appellant.
    
      W. A. Matson and T. S. Dean, for the respondent.
   Williams, J.:

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

The question involved on this appeal is whether the plaintiff was entitled to recover a personal judgment against the defendant for the deficiency arising from the foreclosure and sale of the mortgaged premises.

December 1, 1884, Esther O. Hart, being the owner of the premises, she and her husband gave the bond and mortgage in suit to the plaintiff for $3,000, upon interést. The mortgage was duly recorded. November 30, 1886, Mrs. Hart made a deed of the premises to her brother West, and herself caused it to be placed'upon record. This deed covered'forty acres of land in addition to that included in the $3,000 mortgage. There wa's no consideration for the deed and West did not know it had'been made or recorded until nearly a year afterwards.

. It was given by Mrs. Hart, for the purpose of hindering, delaying and defrauding her creditors.' October 6, 188Í, Mrs. Haft told her brother West about the deed, and asked him and his wife to execute a mortgage upon the premises covered by the $3,000 mortgage to secure one Butler for a debt owing by Mr. Hart, to him,' andWest and his wife: complied with such request, and this mortgage was duly recorded.

The deed from Mrs. Hart to West did not contain. any clause providing that West assumed or agreed to pay the $3,000 mortgage, and West did not in any other way assume or, agreé to pay such mortgage. March 29, 1890, Mrs. Hart’s husband negotiated with the defendant to sell him the premises covered by the $3,000 mortgage for $3,500, to be paid by defendant, $500 in cash, and he assuming and agreeing to pay the $3,000 mortgage, and as a part of the arrangement the mortgage to Butler was to be paid off and discharged. In the course of these negotiations it developed that West held the title to the-premises, and that the deed would have to come from him. West, at the request of Mrs. Hart, made the deed to the defendant. The $500 was paid by' defendant and. was used to~ pay off the. Butler mortgage which was discharged. The deed by West to the defendant contained the provision: This conveyance is made subject to the payment of a certain bond and mortgage made by Esther O. Hart to Ella I. Williams,, on which there is now due and unpaid $3,000 and interest, which is a lien on said premises and. which second party, by accepting this conveyance, agrees to assume and pay and hold the party of- the first part harmless therefrom, the same being a part of the purchase money.”

Mrs. Hart had until this time been in possession of the mortgaged premises and of -the additional forty acres deeded .to. West there- ■ with, and West had not been in possession thereof, or exercised any . control ovér the same. Upon the giving of the deed by West to ' the defendant^ Mrs, 'Hart surrendered .possession of .the ■ mortgaged premises to defendant who remained in possession .thereof until the- . :sale under the mortgage foreclosure. ■ He paid the interest on thej . mortgage, down to. December 1,1898, The interest was not-paid in .'December, 1899, and then this, action was commenced.' The principal was not payable until December 1, 1904, , At the time '.Mrs. Hart surrendered these, premises, to the defendant she also surrendefed to West the forty acres covered by her deed to him, and he has retained possession thereof ever since. Mrs. Hart and her husband have gone away, no one knows where. The facts stated are not in dispute. The trial court found some conclusions of fact growing out of these conceded facts to which the defendant takes exception.

First. That the deed from Mrs. Hart to West was never intended to, and did not vest the ownership of the premises in West, but she all the while remained the owner thereof. '

Second. That Mrs. Hart contracted to sell the premises to the defendant for the sum of $3,500, he to pay $500 in cash, and assume and agree to pay the $3,000 mortgage.

Third. That, in pursuance of such contract, Mrs. Haft procured West to execute and deliver the deed to defendant and that such execution and delivery were the act of Mrs. Hart. ■

Mrs." Hart, very likely, as between herself and West, did hot intend to vest in him title to the premises, but she evidently did intend to vest title in him sufficiently to keep it away from her creditors, and when it came to his knowledge that the deed had been given and recorded and he recognized the title in him by giving the Butler mortgage, he accepted the deed, and could retain the title, and Mrs. Hart could not recover it back, the deed having been given to hinder, delay and defraud her creditors.

It could hardly be said under these circumstances that there was no intention to vest title and that no title was vested in West, but remained all along in her.

There is no evidence showing that, prior to the giving of the deed by West to defendant, there was any contract made between Mrs. Hart and the defendant, or that the giving of the deed was pursuant to any such contract. There was talk between Mr. Hart and the defendant and there were negotiations, but nothing amounting to a contract. The only contract made was that contained in the deed, which was given by West and accepted by defendant. Hor can it be said that the execution or delivery of the deed was the act of Mrs. Hart. It was at most his act, performed at her request, the same as the giving of the Butler mortgage was. At the 'time both were given, West had the legal title to the premises, and Mrs. Hart had no interest therein, legal or equitable, which she could enforce. She was in no sense the owner of the premises. Ho interest of hers in the premises was deeded to the defendant by-West, and, therefore, there Was no consideration flowing from her to the defendant for the promise to pay the $3*000 mortgage. The. interest conveyed to the defendant was the legal title held by West free from any outstanding equity in Mi’s. Hart. The consideration for the promise was from West, and ■ the promise was to him.

The difficulty is that, the promise to West did not inure, to the benefit of plaintiff because West was not liable to plaintiff for the mortgage debt.

There is no doubt as to the general rule of law that an assumption • clause in a deed like this does not render the grantee personally liable for the mortgage debt assumed, unless the grantor was himself so liable when the deed was given.

An effort was made on the trial of this case to avoid, this rule, and the trial court sustained the plaintiff’s Contention, and ordered ¡judgment accordingly. We think the decision, upon the facts conceded or clearly established, and the deductions necessarily drawn therefrom, was erroneous, that the general rule above stated must be applied to this case, and defeats plaintiff’s right to recover herein.

We conclude, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide event. ;

McLennan, Spring, Hiscock and Davy, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  