Harts v. Emery , 1899 Ill. App. LEXIS 100 ( 1899 )

Mb. Justice Harker

delivered the opinion of the court.

This is an appeal from a judgment of $10,903.22 recovered by appellee, as executor of the will of Hanson M. Hart, against appellant, upon an alleged agreement and assumption to pay three promissory notes secured by trust deed upon certain real estate purchased by appellant after the execution of the trust deed.

The chief contentions of appellant are that there is no sufficient evidence in the record to justify a finding that he assumed the payment of the notes; that the right to sue on the notes was barred by the statute of limitations; that by reason of a decree of the Superior Court of Cook County declaring the trust deed given to secure the notes to be void, there was no legal liability resting upon him to pay the notes, and that the court’s computation as to the amount due on the notes was erroneous and excessive.

The law is elementary that where the grantee assumes the payment of a mortgage on land conveyed to him, he becomes, as between him and his grantor, the principal debtor. In view of the recitals contained in appellant’s deed relating to the incumbrance, the payment of interest on the notes up to March 13, 1891, and the writing executed by him on January 19, 1895, the conclusion is irresistible that appellant intended to and did assume the payment of the notes.

There is no room for the contention that.the action was barred by the statute of limitations in the face of the proof that appellant paid interest on the notes for nearly twenty years, and his written agreement that in consideration of the forbearance and indulgence of the holder of the notes to enforce collection, he would not avail himself of the statute of limitations or interpose any obstacle in defense in the event of suit upon the notes. It is difficult to conceive a more complete taking of the case out of the statute by promise of the obligor. Appellant is in no better sitúa,ti on in that regard than the original maker of the note, because, as we have seen, he, as grantee, assumed the payment of the notes, and the law is well settled that as between him and his grantor, he is a principal. His promise would stop the running of the statute as effectually as the promise of the original maker.

It appears that by some chancery proceeding in the Superior Court of Cook County the trust deed was declared invalid and ordered to be canceled, but it does not appear that the debt was paid. When it is considered that appellant agreed to pay these notes as part of the purchase price of the block of ground, they became his debt, and it makes no difference whether the trust deed was valid or invalid. Daub et al. v. Englebach, 109 Ill. 267. We quote from the opinion of that case as applicable here:

“ But the defense is set up and urged by a person who has purchased the land subject to this very mortgage. If any change was made it was probably before he purchased, and when he did so, as a part of the purchase money he in effect assumed the payment of the mortgage, and if required to pay the amount of the mortgage debt, he will only be required to pay what he agreed to when.he purchased. It will not wrong him to the extent of a single penny. It will not be inequitable or unjust. Even if the mortgage were rendered void, he, in equity, is still liable to pay the debt. He agreed to do so, and if the mortgage were rendered void, that did not cancel the debt, nor did it release him from his legal liability to pa_y it. This court has repeatedly held that a person purchasing lands, and agreeing to pay off incumbrances on the land as a part of the consideration for the purchase, becomes liable to pay the holder of the lien.”

For the first time it is urged in this court that appellee could not maintain this suit in his own name. The contention is purely technical, and not having been raised in the court below by demurrer, plea or otherwise, will not be discussed in this opinion.

It is urged that the calculation of the amount due on the notes is erroneous. We have been unable to detect any material inaccuracy in that regard. The rate' of interest adopted by the court in its computation was in accordance with the intention of the parties. Judgment affirmed.