MORTGAGES-ASSUMPTION-LIABILITY OF GRANTEES TO MORTGAGOR

Authors

Abstract

Three successive grantees to a plot of land purchased it subject to a first and second mortgage and assumed the obligation to pay the notes which the mortgages secured. Foreclosure proceedings by the first mortgagee absorbed the entire value of the land. The second mortgagee then extended the time payment on the note to the last grantee without the consent or knowledge of the mortgagor or of the intermediate grantees. Such action released the intermediate grantees from liability on the note, for they were only secondarily liable, but did not release the mortgagor, for he as maker was primarily liable and was not released by an extension of time to a subsequent endorsee. (See Peter v. Finzer, 116 Neb. 380, 217 N.W. 612, 65 A. L. R. 1419, which was decided under a strict interpretation of the Negotiable Instruments Law.) Accordingly the mortgagee sued the mortgagor and enforced payment. The mortgagor then brought suit against the grantees claiming that they were liable on their contract with him. The intermediate grantees claimed that the mortgagor after paying the note was merely subrogated to the rights of the mortgagee, and that as the mortgagee had no rights against the intermediate grantees, there was as against them nothing to be subrogated to. But the court held that the mortgagor could recover from all of the grantees regardless of the rights of the mortgagee, because the grantees had contracted to indemnify the mortgagor and no action of the mortgagee could prejudice his rights under the contract. Finzer v. Peter (Neb. 1930) 232 N.W. 762.

Recommended Citation

MORTGAGES-ASSUMPTION-LIABILITY OF GRANTEES TO MORTGAGOR, 29 Mich. L. Rev. 1090 (1931).
Available at: https://repository.law.umich.edu/mlr/vol29/iss8/30