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ognize the right of the holder of a mortgage to avail himself of an existing agreement between the mortgagor and his vendee, by which the latter assumes the payment of the mortgage debt. These cases have not dealt with the philosophy of such a ruling, but in other states various reasons have been assigned in support of the right of the holder of such mortgage to sue upon the contract, such as a trust relationship, the equitable right of subrogation, agency, privity of contract by substitution, and the broad equity of the transaction. See note to Baxter v. Camp (Conn.) as reported in 71 Am. St. Rep. 169, 176 (s. c. 41 Atl. 803, 42 L. R. A. 514).

Although the point has not been urged upon our consideration by counsel, we approached the question as to the appellant's liability in this case with a doubt that was due to the fact that the contract sued on was executory, and had been consummated on the part of appellee Margaret by the execution of a deed. In a case where a corporation, by resolution, agreed to assume the bonded indebtedness of another corporation, which agreement was accepted by the latter corporation, the supreme court of the United States held that the bondholders could not avail themselves of the arrangement, because it constituted at most only an executory agreement inter partes. Second Nat. Bank v. Grand Lodge of Free & Accepted Masons, 98 U. S. 123, 25 L. Ed. 75. But in the case of an executory contract, in writing, for the sale of real property, the person agreeing to purchase has not merely a chose in action, but in the eye of a court of equity he has an enforceable right to the land, and on the other hand the vendor can compel performance. For this reason, we think that a promise to pay a mortgage that is a part of an executory contract to sell real estate is to be regarded as of such ultimate character that, upon performance by the vendor, an obligation in favor of the holder of a mortgage may attach. But for its evidentiary force, there would be no occasion for the vendor, upon executing a deed, to take a new obligation, for the promise to pay the incumbrance could be shown even as against the vendor's general warranty. As said by Mr. Jones in his work on Mortgages (at section 750): "Even a verbal promise by a purchaser to assume and pay a mortgage is valid, and may be enforced in equity not only by the grantor, but by the holder of the mortgage. A covenant in the deed that the premises are free from incumbrances, or a recital that the consideration has been paid in full, does not estop either the grantor or the holder of the mortgage from proving the agreement and recovering upon it." And see, also, Wilson v. King, 23 N. J. Eq. 150; Merriman v. Moore, 90 Pa. 78; Remington v. Palmer, 62 N. Y. 31; Taintor v. Heimmingway, 18 Hun, 458; Bolles v. Beach, 22 N. J. Law, 680, 53 Am. Dec. 263; Carver v. Louthain, 38 Ind. 530; Gavin v. Buckles, 41 Ind. 528; Bever v. Bever, 144 Ind. 157, 41 N. E. 944; Boruff v. Hudson, 138

Ind. 280, 37 N. E. 786. The execution of a deed poll may, therefore, be regarded as performance on the part of the vendor, leaving the matter of performance upon the part of the vendee dependent upon his prior agreement. Barker v. Bradley, 42 N. Y. 316, 1 Am. Rep. 521. From these considerations, we have concluded that the mere fact that the assumption of a mortgage indebtedness is in an executory contract will not prevent the person holding the mortgage from availing himself of it while it yet remains the agreement of the vendor and the vendee. See Insurance Co. v. Hutchings, 100 Ind. 496; Romaine v. Judson, 128 Ind. 403, 26 N. E. 563, 28 N. E. 75; Judson v. Romaine, 8 Ind. App. 390, 35 N. E. 912.

If, before acceptance of the benefit by the creditor, a deed was made containing contractual recitals that changed the rights of the parties, it would be for the vendee to show the fact; otherwise, we think that he is bound according to the breadth of his prior assumption.

Without the light of further extrinsic circumstances than the special findings disclose, the task of interpreting or construing the covenant of appellant is not without difficulty. The precise question is whether he is to be charged with the assumption of a mortgage lien not of record, because of the words in the contract, "all other liens," in view of the fact that in that immediate connection he has assumed all "mortgages shown of record," and in view of the character of the deed that he was to receive from the vendor. Our conclusion is that, as the case is presented, it does not appear that the appellant is personally liable for the debt that the mortgage secures. The undertaking of appellee Margaret A. Hopton "to sell and convey, by good and sufficient warranty deed," required that she should make a deed with the statutory covenants. Clark v. Redman, 1 Blackf. 379; Linn v. Barkey, 7 Ind. 69; Bethell v. Bethell, 92 Ind. 318. Doubtless, she was entitled to limit the effect of the words "convey and warrant" by restrictive language as to liens (see Jackson v. Green, 112 Ind. 341, 14 N. E. 89), but it can scarcely be held, in view of the ambiguous language of the latter part of the instrument, that the contract contemplated that she was entitled to limit her covenant against incumbrances by subsequent language that would entirely cancel such undertaking. We are, therefore, able to approach the language by which it is claimed that the assumption was created with a considerable degree of assurance that there was at least a class of liens that it was contemplated that the grantor should covenant against; and from this fact it follows that the words "all other liens," in the grantee's covenant, are especially liable to be restrained by other words in the immediate context. We find such restrictive words in the provision that that grantee is to "assume all * mortgages shown of record." This language calls for the applica

as well as of the mortgage record, he was not required to take notice that a mortgage which fully and accurately described lots 13 and 14 in University Park addition was really meant and intended to describe lots 13 and 14 in the Second addition.

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But it is contended by appellants that appellee is not entitled to protection as an innocent purchaser, because his mortgagor held title by quitclaim deed only. To this we cannot assent. It has been held that a grantee in a deed of general warranty, who acts in good faith, and without notice, and whose grantor held title by quitclaim, may be an innocent purchaser within the meaning of the law. Meikel v. Borders, 129 Ind. 529, 29 N. E. 29. This, and other like cases, rest upon the theory that, however it may be, it is the much-mooted question whether grantee, by his acceptance of a quitclaim deed, is put upon his inquiry as to the title by the very form of the deed; yet when he conveys the same title by a warranty for like reason the form of the latter deed furnishes sufficient assurance to justify confidence that upon inquiry the title had been found good and unincumbered. A mortgage with warranty is entitled to as much faith and confidence as a warranty deed. Carr's mortgage to appellee is in the usual form, the granting words being "mortgage and warrant." With respect to such mortgages, section 3349, Burns' Rev. St. 1901, provides that a mortgage of land worded as follows: "A. B. mortgages and warrants to C. D.," etc., "to secure the payment," etc., "shall be deemed and held to be a good and sufficient mortgage to the grantee, his heirs, assigns, executors and administrators, with warranty from the grantor and his legal representatives, of perfect title in the grantor, and against all previous incumbrances." It follows that the trial court rightly ruled that appellee, having accepted his mortgage in good faith, and without notice of the mistake in appellants' mortgage, was an innocent purchaser or mortgagee, and entitled, as against appellants, to the prior lien. Judgment affirmed.

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from the grantee at the time of such convey

ance.

3. Where, in a contract for the sale of land, the prospective grantee promises to assume and pay a mortgage thereon, the burden is on him, as against the mortgagee relying on such promise, to show a modification of the contract between himself and the mortgagor prior to the mortgagee's acceptance thereof.

4. In a contract for the sale of land, the grantor to convey by "good and sufficient warranty deed," in consideration whereof the grantee promises to assume and pay "all unpaid taxes and mortgages shown of record and all other liens, including the attachment proceeding now pending," the words "all other liens" are to be construed as ejusdem generis with the liens specifically mentioned, which are all of record, and hence will not include an unrecorded mortgage, though the grantee had notice thereof at the time.

Appeal from circuit court, Fountain county; Joseph M. Rabb, Judge.

Action on a written contract to assume and pay a mortgage, by Jacob Hushaw and another, against J. Wesley Whicker. From a judgment for plaintiffs, defendant appeals. Transferred from appellate court, under Acts 1901, p. 590 (section 1337u, Burns' Rev. St. 1901). Reversed.

Whicker & Bryant and Lucas Nebeker, for appellant.

GILLETT, J. On the 5th day of October, 1899, appellant and appellee Margaret A. Hopton entered into an executory contract in writing, by the terms of which the latter bound herself to sell and convey to appellant, "by good and sufficient warranty deed," a certain tract of real estate. The obligation of appellant was expressed in said contract as follows: "Said J. Wesley Whicker, party of the second part, to pay cash in hand, on the delivery of the deed, the sum of (1752.50) one thousand, seven hundred and fifty-two dollars and fifty cents, and assume all unpaid taxes and mortgages shown of record and all other liens on said lands, including the attachment proceeding now pending." This contract was consummated, upon the part of said Margaret, on the same day, by the execution of a warranty deed to appellant. At the time of making said contract there was an unrecorded mortgage against said land, made by appellee Margaret and held by appellee Jacob Hushaw, that had been long overdue, and appellant had full knowledge of its existence at the time he entered into said contract. The endeavor of appellees in this action was to hold appellant personally responsible for the amount of said mortgage, as upon a debt assumed. The evidence is not in the record. The complaint does not allege, and the special findings that were filed in the case do not show, any further extrinsic facts that might aid in determining the intent of the parties to the contract, such as the value of the land, whether there were liens against it aside from those mentioned, and whether the parties to the contract had knowledge of the fact that the mortgage was not of record.

The cases are many in this state that rec

ognize the right of the holder of a mortgage to avail himself of an existing agreement between the mortgagor and his vendee, by which the latter assumes the payment of the mortgage debt. These cases have not dealt with the philosophy of such a ruling, but in other states various reasons have been assigned in support of the right of the holder of such mortgage to sue upon the contract, such as a trust relationship, the equitable right of subrogation, agency, privity of contract by substitution, and the broad equity of the transaction. See note to Baxter v. Camp (Conn.) as reported in 71 Am. St. Rep. 169, 176 (s. c. 41 Atl. 803, 42 L. R. A. 514).

Although the point has not been urged upon our consideration by counsel, we approached the question as to the appellant's liability in this case with a doubt that was due to the fact that the contract sued on was executory, and had been consummated on the part of appellee Margaret by the execution of a deed. In a case where a corporation, by resolution, agreed to assume the bonded indebtedness of another corporation, which agreement was accepted by the latter corporation, the supreme court of the United States held that the bondholders could not avail themselves of the arrangement, because it constituted at most only an executory agreement inter partes. Second Nat. Bank v. Grand Lodge of Free & Accepted Masons, 98 U. S. 123, 25 L. Ed. 75. But in the case of an executory contract, in writing, for the sale of real property, the person agreeing to purchase has not merely a chose in action, but in the eye of a court of equity he has an enforceable right to the land, and on the other hand the vendor can compel performance. For this reason, we think that a promise to pay a mortgage that is a part of an executory contract to sell real estate is to be regarded as of such ultimate character that, upon performance by the vendor, an obligation in favor of the holder of a mortgage may attach. But for its evidentiary force, there would be no occasion for the vendor, upon executing a deed, to take a new obligation, for the promise to pay the incumbrance could be shown even as against the vendor's general warranty. As said by Mr. Jones in his work on Mortgages (at section 750): "Even a verbal promise by a purchaser to assume and pay a mortgage is valid, and may be enforced in equity not only by the grantor, but by the holder of the mortgage. A covenant in the deed that the premises are free from incumbrances, or a recital that the consideration has been paid in full, does not estop either the grantor or the holder of the mortgage from proving the agreement and recovering upon it." And see, also, Wilson v. King, 23 N. J. Eq. 150; Merriman v. Moore, 90 Pa. 78; Remington v. Palmer, 62 N. Y. 31; Taintor v. Heimmingway, 18 Hun, 458; Bolles v. Beach, 22 N. J. Law, 680, 53 Am. Dec. 263; Carver v. Louthain, 38 Ind. 530; Gavin v. Buckles, 41 Ind. 528; Bever v. Bever, 144 Ind. 157, 41 N. E. 944; Boruff v. Hudson, 138

Ind. 280, 37 N. E. 786. The execution of a deed poll may, therefore, be regarded as performance on the part of the vendor, leaving the matter of performance upon the part of the vendee dependent upon his prior agreement. Barker v. Bradley, 42 N. Y. 316, 1 Am. Rep. 521. From these considerations, we have concluded that the mere fact that the assumption of a mortgage indebtedness is in an executory contract will not prevent the person holding the mortgage from availing himself of it while it yet remains the agreement of the vendor and the vendee. See Insurance Co. v. Hutchings, 100 Ind. 496; Romaine v. Judson, 128 Ind. 403, 26 N. E. 563, 28 N. E. 75; Judson v. Romaine, 8 Ind. App. 390, 35 N. E. 912.

If, before acceptance of the benefit by the creditor, a deed was made containing contractual recitals that changed the rights of the parties, it would be for the vendee to show the fact; otherwise, we think that he is bound according to the breadth of his prior assumption.

Without the light of further extrinsic circumstances than the special findings disclose, the task of interpreting or construing the covenant of appellant is not without difficulty. The precise question is whether he is to be charged with the assumption of a mortgage lien not of record, because of the words in the contract, "all other liens," in view of the fact that in that immediate connection he has assumed all "mortgages shown of record," and in view of the character of the deed that he was to receive from the vendor. Our conclusion is that, as the case is presented, it does not appear that the appellant is personally liable for the debt that the mortgage secures. The undertaking of appellee Margaret A. Hopton "to sell and convey, by good and sufficient warranty deed," required that she should make a deed with the statutory covenants. Clark v. Redman, 1 Blackf. 379; Linn v. Barkey, 7 Ind. 69; Bethell v. Bethell, 92 Ind. 318. Doubtless, she was entitled to limit the effect of the words "convey and warrant" by restrictive language as to liens (see Jackson v. Green, 112 Ind. 341, 14 N. E. 89), but it can scarcely be held, in view of the ambiguous language of the latter part of the instrument, that the contract contemplated that she was entitled to limit her covenant against incumbrances by subsequent language that would entirely cancel such undertaking. We are, therefore, able to approach the language by which it is claimed that the assumption was created with a considerable degree of assurance that there was at least a class of liens that it was contemplated that the grantor should covenant against; and from this fact it follows that the words "all other liens," in the grantee's covenant, are especially liable to be restrained by other words in the immediate context. We find such restrictive words in the provision that that grantee is to "assume all * mortgages shown of record." This language calls for the applica.

tion of the maxim, "Expressio unius, exclusio alterius." The language restricts that which is general by that which is particular and specific. This consideration is further reinforced, when applied to unrecorded mortgages of which the grantee did not have knowledge, by reason of the fact that it cannot be supposed that he would have personally undertaken to pay a class of obligations that might have been so extensive as to work his financial ruin; such an assumption would, indeed, be a leap into the dark. We are, therefore, able to definitely affirm that the words "all other liens" were not intended by the parties to break down the prior implied restriction, but that there was at least a class of mortgage liens not assumed by the grantee. Having reached the conclusion that the words "all other liens" do not serve to expand the liability of the grantee to pay liens into one of the utmost obligation, the question arises, what meaning is to be assigned to the words last quoted? We think that this is a case for the application of the ejusdem generis doctrine. The class of assumptions specifically mentioned are liens of record,—that is, taxes, recorded mortgages, and an attachment,-and it is our view that under the doctrine mentioned the words "all other liens" are to be held applicable only to liens of the same category, namely, liens of record. The maxim is ancient that "general words shall be restrained unto the fitness of the matter and person." Bac. Max. 10. As said by Mr. Broom: "However general the words of a covenant may be, if standing alone, yet if, from other covenants in the same deed, it is plainly and irresistibly to be inferred that the party could not have intended to use the words in the general sense which they import, the court will limit the operation of the general words." Broom, Leg. Max. (7th Ed.) 429. The application of the maxim depends at all times upon the particular language used, and the fact that, in some cases, the covenants are widely separated in the instrument, is an element in determining upon its application; yet, where the covenants are so closely knit together that it may be said that one intent pervades the whole, proper interpretation often requires the courts to treat general expressions as restrained to persons or things in the same general category as those specifically mentioned, to the end that the spirit of the instrument may not be subordinated to the letter of some portion of it.

We regard the assumption of the grantee of "mortgages shown of record" as absolutely inconsistent with a construction of the contract that would make him assume mortgages not shown of record, notwithstanding the subsequent words, "and all other liens." As Lord Eldon observed in Browning v. Wright, 2 Bos. & P. 13, 24: "What would be the use of any of the other covenants if this were general?" If appellee's construction is correct, the parties to the contract might as well have simply provided that the grantee should

assume all liens. The argument in support of a construction that renders the other closely connected, specific provision idle cannot command our assent. It is true that the court finds that the appellant knew of the existence of the Hushaw mortgage, but it is a far cry from this fact to the conclusion that appellant assumed it. In the first place, such a construction would run athwart the language of the covenant that impliedly excludes from the assumption all mortgages not "shown of record," and in the second place there are no facts alleged or found which would have made it antecedently probable that it was within the contemplation of the parties that appellant should pay such mortgage. To il lustrate the last proposition: There is nothing in the facts found which excludes the idea that definite provision was made, at the time of the execution of the contract, for the discharge of such obligation by the grantor. Contemporaneously with the transaction, a draft for the amount of the debt may have been mailed to the mortgagee that did not reach him, or that he failed to realize on. So there is no force in the argument of appellees that it is against the probabilities that appellant would have paid over the purchase money relying upon his grantor's covenant. In a case like this, where the instrument is the basis of the action, the appellees should have averred such extrinsic facts as they claimed existed, tending to stamp a particular meaning upon the contract, and under such averments proof might have been offered that would have warranted the conclusion that appellant assumed the mortgage, but, with the burden on appellees, we can but hold, when confined to the extent that we are to the language of the contract, that an assumption of said mortgage has not been shown. We think that in this case we should not order judgment to go in appellant's favor on the special findings, but that a new trial should be granted, and leave given appellees to amend their complaint, if they apply for permission so to do.

Judgment reversed, with direction to the trial court to grant a new trial, and for further proceedings not inconsistent with this opinion.

(159 Ind. 23)

ADAMS v. MCLAUGHLIN. (Supreme Court of Indiana. June 6, 1902.) REAL ESTATE BROKER-SUIT FOR COMMISSIONS-SUFFICIENCY OF COMPLAINT-SERVICES OF ANOTHER BROKER-ADMISSIBILITY OF EVIDENCE.

1. A complaint by a real estate broker for commissions which alleges that defendant employed him to sell the land, and agreed to pay him a certain commission if he found a purchaser, and that he advertised and sold the land to one who paid the purchase money and received a deed, but that defendant refused to pay the broker his commission, is good against demurrer.

2. Defendant's evidence in an action by a real estate broker for commissions that de

fendant had employed another broker, who attempted to dispose of the land to the purchaser, who had obtained his information from plaintiff, is rightly excluded as irrelevant.

Appeal from circuit court, Jay county; John M. Smith, Judge.

Action by Charles W. McLaughlin against David L. Adams. From a judgment for plaintiff, defendant appeals. Transferred from the appellate court under Act March 13, 1901 (Acts 1901, p. 590). Affirmed.

F. H. Snyder and Williamson & Whipple, for appellant. J. J. Moran and McGriff & Bergman, for appellee.

DOWLING, C. J. Action by appellee, a real estate broker, to recover from appellant commissions alleged to be due upon a sale of a farm. The complaint was in two paragraphs. The first states that the appellee was a real estate broker; that the appellant employed him to sell a tract of land situated in Jay county, containing 80 acres, and agreed to pay him a commission of $100 if he would find a purchaser for said real estate; that the appellee advertised said land, and afterwards sold it to one Beach for $3,000; that the purchase money was paid by Beach, and a deed was executed and delivered to him; that the appellee performed all of the conditions of said agreement on his part, but that the appellant refused to pay said sum of $100, etc. The second paragraph of the complaint, in addition to the averments contained in the first, alleged that the appellant was the agent of one Bobb, who owned the real estate which appellee was employed to sell, and that the appellant had authority from the owner to sell said land, and employed the appellee to find a purchaser, etc. A demurrer to each of these paragraphs was overruled. The appellant answered in denial of the complaint. The cause was submitted to a jury for trial, and a verdict was returned for the appellee. Over a motion for a new trial, the court rendered judgment on the verdict. The errors assigned and not waived are the rulings of the court on the demurrers to the complaint and on the motion for a new trial.

The complaint avers that the appellant employed the appellee to sell the real estate, and agreed to pay him $100 as commissions if he found a purchaser. It alleges that the appellee sold the land, and that the owner executed a deed to the purchaser, and received the purchase money. The pleading was sufficient. It stated the terms of the contract, performance by the appellee, a breach by the appellant, the special damages sustained by the appellee by reason of the breach, and that such damages were due and unpaid. Nothing more was necessary. No question as to the nature of the services to be performed by a real estate broker is presented by the demurrers, and the cases of Stewart v. Murray, 92 Ind. 543, 47 Am. Rep. 167, Wilson v. Dyer, 12 Ind. App. 320, 39

N. E. 163, and Platt v. Johr, 9 Ind. App. 58, 36 N. E. 294, referred to by appellant's counsel, do not apply.

Nineteen reasons are assigned for a new trial. Those discussed are the second, which is that the verdict was not sustained by sufficient evidence, and 15 others founded upon the exclusion of evidence by the court.

The evidence fully sustains the verdict. Indeed, the principal point of controversy, shown by the testimony of the appellant himself, seems to have been whether the appellee should have the whole commission, of $100, or divide it with another broker who also had been employed by appellant to sell the land. But even if the statements of the appellant as a witness on his own behalf will not bear this construction, there was evidence which supported every allegation of the complaint, and the jury thought it of sufficient credibility and weight to entitle the appellee to a verdict.

The court refused to permit the appellant to prove by the appellee and by the witnesses Beach and Hearn certain facts tending to show that Hearn, another broker, had some connection with the sale of the farm to Beach. The evidence was properly excluded. If the appellee was employed to sell the land or to find a purchaser for it, and if he did find such purchaser and effect a sale, his right to compensation was not impaired by the fact that the appellant had employed another broker, also, who attempted to dispose of the farm to some of the persons who had obtained information concerning it from the appellee. Insurance Co. v. Williams, 98 Ind. 403, 407; Hoadley v. Bank, 71 Conn. 599, 42 Atl. 667, 44 L. R. A. 321, and notes; . Platt v. Johr, 9 Ind. App. 58, 60, 36 N. E. 294.

The motion for a new trial was properly overruled. Judgment affirmed.

(159 Ind. 8)

FIFER v. RITTER et al. (Supreme Court of Indiana. June 5, 1902.)

PROCEEDINGS TO OPEN HIGHWAY-APPEALQUESTIONS REVIEWABLE DISCRETION OF LOWER COURT-DAMAGES AND BENEFITSINSTRUCTIONS ADMISSIBILITY OF EVIDENCE-TRIAL-MANNER OF WEIGHING EVIDENCE PROPRIETY OF INSTRUCTION.

1. A motion made on the trial of a remonstrance for damages, in proceedings for the opening of a highway, to reject the report of the viewers, cannot be reviewed on appeal where not brought into the record by bill of exceptions or otherwise.

2. Such motion is likewise not open to review where not renewed on appeal to the circuit court, the cause being there triable de novo.

3. The circuit court's refusal to open the issues and permit the motion to be filed after one trial of the appeal had been had, and after the case had been sent to another county for retrial, and a large amount of costs had accumulated, was a proper exercise of discretion, and not reviewable.

4. In instructing a jury that they are the exclusive judges of the credibility of the witnesses and the weight of the evidence, it is proper to tell them that in determining these

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