Weaver v. McKay

Citations

• 108 Cal. 546
• 41 P. 450
• 1895 Cal. LEXIS 889

Syllabus

<p>Mortgage—Assumption of Debt by Vendee—Performance of Agreement—Fraud.—Where there is an agreement between the vendor of mortgaged premises and the vendee that the mortgaged premises were to be conveyed subject to the indebtedness thereon, and the vendee simply accepted, in pursuance of the agreement, a deed not only made subject to the mortgage, but in which the grantees expressly assumed and agreed to pay, discharge, and satisfy the mortgage in consideration of the conveyance, the acceptance of such deed is no fraud upon them, and they have no claim for relief against liability to pay a judgment for the deficiency.</p> <p>Id.—Issue as to Fraud in Procuring Acceptance of Deed—Pleading— Contract—Evidence—Finding.—Upon an issue as to whether the vendees were induced to accept the deed by fraud, the prior written agreement between the vendor and vendees is not evidence, and the fact that such agreement is set out in the answer as part of the charge of fraud, upon which issue there is a finding, does not create a distinct issue as to the contract, upon which there should be a separate finding, nor does the fact that the genuineness of the contract set out in lime verba in the answer is not denied overcome other testimony upon the subject of the alleged fraud.</p> <p>Id.—Record of Deed—Certified Copy—Proof of Assumption of Mortgage Debt—Record of Stipulation.—A certified copy of the record of the deed containing a contract for the assumption of the mortgage debt is evidence of the- assumption therein set forth; and even had the stipulation to assume the mortgage debt been contained in a separate instrument it would have been entitled to be recorded under section 1158 of the Civil Code.</p>