Edwards v. Thostenson
Edwards v. Thostenson
Opinion of the Court
-The facts, sufficiently stated, are substantially as follows: In May, 1877, the defendant, Thostenson, executed a mortgage to the plaintiff on certain real estate, to secure the payment of one thousand dollars in 1882, with interest to be paid semi-annually; but it was provided that, upon a failure to pay interest or taxes, the whole debt secured by the trust deed would become due. In March, 1878, Thostenson conveyed a portion of the premises described in the trust deed to the defendant, Long. The conveyance contains the following provisions.
“This deed is given subject to a certain mortgage or trust deed given by the said Knudt Thostenson * * * .
Afterwards Thostenson conveyed the remaining portion of the premises described in the trust deed to Sunderson, and he conveyed to Breekenbridge in 1880. ° In 1879 default was made in the payment of the semi-annual interest, and this action was brought to foreclose the deed of trust. Breekenbridge filed a crossqpetition against his co-defendant, Long, in which he claimed, in substance, that the portion of the real estate conveyed to the latter should pay one-half of the amount due on the said deed of trust. The trust deed was foreclosed without a determination of the issue between the defendants, and the premises separately sold under the decree of foreclosure. The whole amount, excluding costs, then due on the deed of trust was $1,421.32. The Long tract was sold for $450, and Breckenbridge’s for the residue. After such sale, the issue between Long and Breekenbridge was so changed by pleadings filed as to permit the latter to recover of the former any sum which, under the circumstances, he was entitled in equity to recover. Eor the purposes of this case, it will be conceded that the assumption of a portion of the indebtedness contained in the conveyance from Thostenson to Long, enured to the benefit of Breekenbridge, and that the latter can recover, provided Long has not paid all he agreed to. The material question, therefore, is, how much did Long agree to pay? It is clear, he agreed to pay $500 when the debt became due in 18S2, or to pay that amount at any prior time when Thostenson was ready to pay the balance due on the mortgage. This was the extent of his liability. He did not agree to pay any interest; and if Thostenson had been ready to pay when the first six months’ interest became due after the conveyance to Long, the latter could then have discharged his liability by the payment of $500. It seems to us this must be so, and it follows
Affirmed.
Reference
- Full Case Name
- Edwards, Trustee v. Thostenson
- Status
- Published