#### Stites, Guardian, Respondent, vs. Erhart, Appellant.

*February 19*—

March *11, 1902.*

*Mortgages: Assumption by grantee: Recital in deed,: Evidence.*

Defendant’s grantor gave a purchase-money mortgage for land, it being agreed that, if the land should he platted, proportionate releases should he made of individual lots. The land was platted into sixty-four lots, of which defendant and another bought thirty-one, their deed providing that they assumed and agreed to pay one half of the mortgage. After-wards defendant purchased from a third person an additional lot, the deed warranting against incumbrances “except that said lots are subject to a mortgage on said division, and each liable for one sixty-fourth of the amount due thereon, . . . which second party assumes and agrees to pay.” Defendant paid half of the mortgage debt, and, when sued on the agreement in the second deed, claimed that the conveyance of the one lot was only the carrying out of an understanding, had at the time the land was platted, that defendant and his associate should have half of the premises, and that by the first deed they had already assumed the portion of the mortgage indebtedness described in the deed of the last lot, which had been paid. *Held,*in the absence of anything to overcome the evi-dentiary force of the deeds, that they supported a finding that defendant assumed and agreed to pay an additional one sixty-fourth of the mortgage debt.

Appeal from a judgment of tbe circuit court for Douglas county: A.. J. ViNje, Circuit Judge.

*Affirmed.*

In 1891 one Michael S. Bright, as guardian, sold a tract of land by deed to one Elsroad, and received a mortgage bach for about two-thirds of the purchase price, $21,500, due one half in one and the other half in two years. The mortgage provided that in case of platting into not more than sixty-sis lots releases should be made of individual lots for a proportionate part of the amount due. Elsroad platted the tract into sixty-four lots, and about July 7, 1891, by warranty deed, conveyed to the defendant, *GTiarles A.*Erhart, and one Thompson, thirty-one lots, providing in said deed *480that tbe grantees assumed and agreed to pay one balf of said mortgage. At abont tbe same time be deeded sixteen lots to one Stone, wbo, on July 28, 1891, by warranty deed, conveyed one lot to tbe defendant, tbe deed reciting, subsequent to tbe warranty against incumbrances:

“Except that said lots are subject to a mortgage on tbe said division, and each liable for one sixty-fourtb of tbe amount due tbereon, payable in one and two years from tbe date of tbe mortgage, which second parly assumes and agrees to pay.”

Bright having assigned tbe mortgage to tbe plaintiff, general guardian of tbe same, minors, tbe latter, in February, 1895, brought an action at law against *Erhart*and Thompson, based upon their assumption of one-half of tbe mortgage contained in tbe deed to them, and recovered judgment, which judgment was satisfied. He also foreclosed tbe mortgage, upon which foreclosure tbe real estate sold for less than the accrued interest. Thereafter be commenced this action against tbe defendant alone, setting up tbe mortgage indebtedness and tbe second deed, assuming and promising to pay one sixty-fourtb thereof. Defendant contended upon tbe trial that tbe conveyance from Stone to him of tbe one lot was only in completion of an understanding, bad at the time when Elsroad purchased and platted, that *Erhart*and Thompson were to have balf of the premises, and that Stone’s deed was merely to supply an omission in tbe earlier deed, whereby only thirty-one, instead of thirty-two, lots bad been conveyed; hence arguing that in tbe first deed they bad already assumed, *inter*alia, tbe portion of tbe mortgage indebtedness described in tbe deed of tbe last lot, and bad paid it in tbe settlement of the judgment first taken. Defendant also made some contention for an express agreement at tbe time of settling that judgment that tbe amount then paid should be received in full satisfaction of all tbe personal liability of either tbe defendant or Thompson for any part of tbe mortgage debt. Tbe trial court found against tbe defend*481ant, and rendered judgment in favor of tbe plaintiff for one sixty-fourth of tbe amount found due upon tbe mortgage debt, from which the defendant appeals.

Eor tbe appellant the cause was submitted on the brief of *Titus & McIntosh,*and for the respondent on that of W. *D-Dwyer*and *Michael 8. Bright.*

Dodge, J.

There are but two questions presented upon this appeal, both mainly questions of fact. The first one is-what share of tbe mortgage indebtedness defendant assumed second, whether it has been paid.

Upon the first of these questions two solemnly executed warranty deeds, accepted, the one by *Brhart*and Thompson, the other by *Brhart*alone, are the strongest and most cogent evidence. By the first of these, which did not convey the lot covered by the second, the parties- unambiguously assumed and agreed to pay one half of tbe mortgage. That deed is npt preserved in the bill of exceptions, but evidence is given of the substance of it, whereby this assumption of one half of the mortgage debt is not shown- to have any relation whatever to the application of one sixty-fourth of the mortgage debt to each lot, but is clear and explicit that in purchasing the thirty-one lots they agreed to pay one half of that debt. By the other deed, coming from a different person, and running to defendant alone, he agrees to pay the one sixty-fourth of the mortgage indebtedness for which that particular lot was liable. We can find nothing in the record to overcome the obvious significance of these deeds. It does not appear that the first did not correctly express the contract between the parties, and, even if there were evidence to that effect, the deed itself would be cogent evidence to the contrary, and might well support a finding. Neither is there any evidence that the lot conveyed by the second deed was intended to -have been conveyed in the *first;*merely that the second deed was *482made to complete tbe purpose of au equal division. Exom this it by no means follows tbat au additional assumption of one sixty-fourtb of tbe mortgage debt was not deemed necessary and agreed upon. We know nothing of tbe relative value of tbe lots. Suffice it to repeat, however, tbat no evidence so overcomes tbe evidentiary force of these deeds as to warrant us in repudiating tbe finding of tbe court tbat by tbe acceptance of tbe last deed defendant did assume arid agree to pay an additional one sixty-fourtb of tbe mortgage debt.

As to whether, in paying an agreed sum in satisfaction and cancellation of tbe judgment recovered upon tbe first deed, there was any agreement tbat thereby should be settled and satisfied all claims against tbe defendant and Thompson for any personal liability assumed upon the mortgage, there is conflict of evidence, but we agree with tbe court tbat tbe preponderance thereof is against tbe contention, and bis finding to tbat effect must stand.

*By the Gourt.*— Judgment affirmed.