Patton v. Adkins , 42 Ark. 197 ( 1883 )

SMITH, J.

Adkins sued Patton before a justice of the peace, alleging as Ms cause of action that one Reasin owed him a debt of §65, which the defendant had afterwards assumed. The plaintiff recovered judgment there, and again in the Circuit Court on appeal.

The evidence showed that the plaintiff had sold Reasin a horse for §65, and had taken his note, secured by mortgage on the crop of cotton do be raised by the debtor during the year 1881, on the Ah Hogan farm, on Bayou Meto. This mortgage was executed in January, 1881. In March following, Reasin executed to defendant a mortgage upon a certain horse and his entire crop of corn and cotton to bo raised by him, or under his control, during that year, except §65 worth of the cotton which had been previously mortgaged to Adkins. Reasin was living on the Al. Hogan place at the time of giving the second mortgage, but in point of fact made no crop there, having soon after moved off to another farm, where he did make a crop. Before the crop was gathered, Reasin left the country. Patton received the proceeds of the crop ; but Adkins says that he verbally promised to pay his debt provided Adkins would not go to law about it. After waiting on him three weeks, and becoming convinced that Patton did not intend to pay, Adkins sued out an attachment against the crop, which had already been levied on to satisfy Patton’s debt. But in this contest Adkins was defeated. He then brought this action, which was determined before a jury, to whom no directions of any sort were given.

The acceptance of a deed subject to a specified mortgage, does not imply a promise on the part of the grantee to pay the mortgage debt. If the deed contains a stipulation that the property is subject to a mortgage which the grantee agrees to pay, then a duty is imposed on him by the acceptance, and the law implies a promise to perform it, on which promise, in case of failure, assumpsit will lie. But here no express agreement is proved that the defendant would become personally liable, and no facts from which such an agreement can or ought to be implied. Fiske v. Tolman, 124 Mass., 254, and cases there cited; S. C. 26 Amer. Rep., 659 and note; Hamill v. Gillispie, 48 N. Y., 556; Merriman v. Moore, 90 Pa. St., 78; Jones on Chattel Mortgages, sec. 489 ; Jones on Mortgages of Real Estate, sec. 761.

Action.

The parol assumption of the debt, if not within the statute of frauds, was conditional; the condition being that Adkins should refrain from suit. And this condition was Very soon afterwards violated by the institution of a suit without any demand on Patton to perform his promise.

Reversed, and a new trial ordered.