McRae v. Sullivan , 56 Minn. 266 ( 1894 )

Canty, J.

This is an appeal from an order overruling the demurrer of the defendant Sullivan to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

The complaint alleges that plaintiffs were the owners of certain land in Wisconsin, which they sold and conveyed to the other defendants, who gave their notes, secured by a mortgage, for the purchase price. That thereafter those defendants sold and conveyed by warranty deed an undivided one-half interest in the land to the defendant Sullivan, who in consideration thereof in and by the deed assumed and agreed to pay one-half of said mortgage indebtedness; that thereafter an action was commenced in the circuit court in Douglas county, Wis., by these plaintiffs, against all of the defendants, to foreclose said mortgage; that personal judgment was in the complaint demanded against the other defendants for any deficiency, but not against Sullivan, as he was not a resident of that state; that all of the defendants appeared in that action, and judgment of foreclosure was entered, the land sold under it, and judgment for the deficiency, being the sum of $2,735.49, was duly entered against the other defendants, but no judgment for any deficiency was entered against Sullivan.

The ease of Washington Life Ins. Co. v. Marshall, ante, p. 250, disposes of this case. It is there said: “The obligation of these defendants [the purchasers subject to a mortgage which they assume and agree to pay] is collateral to the original mortgage indebtedness; and the mortgagee need not accept the security of that liability, or sue upon it, until lie sees fit to do so. It is not merged in such a judgment of foreclosure.”

The defendant has made no other point worthy of notice.

The order appealed from is affirmed.

(Opinion published 57 N. W. Rep. 659.)