Whitney v. Kirtland,

appears by the answer, agreed with the complainant that, if he should become the purchaser of the property, she would look to the rest of the property, not taken by the road board, for the payment of that mortgage. He bought the property on that understanding, and on the faith of it he has paid over the surplus, $8850.27, to Wheeler and Green, on their judgment. There is also evidence of an agreement on the part of the counsel and attorney of Miss Kirtland, with her sanction, to accept a mortgage for an amount of the purchase money equal to the sum ($1400) ordered to be retained to answer the claim for dower, and the amount ($1370) allowed in respect to the assessment for benefits. The complainant is entitled to his deed on his complying with his part of the agreement. There is no allegation that he is in any laches, nor does there appear to be any ground for such allegation.

It is insisted by the defendants' counsel, that the bill should be dismissed as to the attorney of Miss Kirtland, because he appears to have been an agent or attorney merely, and in no wise a principal. It is true that in this matter he has acted as attorney and counsel merely, but he holds the deed and the money received from the road board, applicable to the payment of the purchase money. He is a proper, if he be not a necessary party to the suit.

The agreement between Miss Kirtland and the complainant, made at the sheriff's sale, is not only established, but it has, to a very great extent, been executed. The road board money collected under it, and applicable to the payment of the purchase money, might, at all times, have been, as it now may be, applied according to the agreement. In obtaining that money, the attorney of Miss Kirtland acted as attorney for the complainant, and his action in allowing the assessment for benefits was binding on the latter, who has no claim upon Miss Kirtland in respect to it. The dower was to be paid out of the road board money. That claim was, neither at law nor in equity, subject to or affected by the judgment against John Kirtland and George Kirtland, or the sale under it. The agreement made by Miss Kirtland to accept a mortgage

Whitney v. Kirtland.

on account of the purchase money, for an amount equal to the sum retained to answer the claim of dower and the amount allowed for the assessment for benefits, was a merely voluntary agreement. It will not be enforced.

The prayer for a decree that the trust mortgage be paid out of the proceeds of the sale under the Kirtland judgment, in order that the complainant's title may be cleared of the cloud which it casts upon it, will not be granted. That mortgage, indeed, was not reformed as against the Wheeler and Green judgment, but it stands reformed as against the Kirtland judgment. The complainant, as purchaser under the latter judgment, has no equity to have it discharged out of the proceeds of the sale. None is set up in the bill, except that which is claimed to arise from the fact that that mortgage was not reformed as against the Wheeler and Green judgment, and that is, indeed, no equity.

The conclusion is, that the attorney of Miss Kirtland will be decreed to deliver the deed to the complainant on receiving the balance, without interest thereon, remaining due on the Kirtland execution, as reduced, with interest up to November 5th, 1874, but not after that date, after applying the road board money, (deducting, of course, the amount paid for dower,) with the interest which he has received thereon, and the delivery to him of a receipt of Wheeler and Green's attorneys for surplus on the execution. The complainant is entitled to costs as against Miss Kirtland and her attorney.

Ketcham v. Brooks.

KETCHAM vs. BROOKS and others.

1. The proof of the loss of a deed, in this case, held to be sufficient to warrant the admission of secondary evidence of its contents.

2. Such secondary evidence held to establish the fact that the grantee took his deed with full knowledge that it contained a covenant of assumption of a mortgage upon the property conveyed, and with knowledge of the nature of the liability thereby assumed.

3. Where the object of the bill is not to prove title by a deed alleged to be lost, but to prove a covenant of the grantee contained therein, it is not necessary that the subscribing witness to the deed or the officer before whom the acknowledgment was taken, should be produced, or that there should be evidence of the impracticability of obtaining their testimony, other satisfactory evidence of the covenant being offered.

4. A parol assumption by a grantee of mortgaged premises, made at the time of the conveyance to him, makes him liable to a personal decree for deficiency.

Bill to foreclose. On final hearing on pleadings and proofs.

Mr. D. A. Ryerson, for complainant.

Mr. W. S. Whitehead, for defendant Mandeville.

THE CHANCELLOR.

The contest in this case is between the complainant and Frederick B. Mandeville, the only defendant who has answered, as to the liability of the latter to a personal decree requiring him to respond for deficiency. The complainant, in his bill, alleges that Dr. Mandeville, on the conveyance of the mortgaged premises to him by Brooks, the mortgagor and obligor in the bond which the mortgage was given to secure, assumed the payment of the mortgage. Dr. Mandeville, in his answer, admits the conveyance by Brooks to him, but says that he does not believe that in the deed to him from Brooks, there was any clause, as alleged in the bill, by which he assumed to pay the principal of the mortgage, and he further says that it was not his intention so to do, and further, that

Ketcham v. Brooks.

he believes that the deed contained only a clause signifying that the conveyance was made "subject to" the mortgage.

The deed from Brooks to Mandeville is lost, and objection is made on the part of the latter that the proof of loss is insufficient to warrant the admission of secondary evidence of its contents. The deed was delivered by Brooks to Mandeville, and the latter testifies that subsequently and a short time after he received it, he gave it to Samuel Klotz or John K. Dunlap, real estate brokers, in order that the person to whom he gave it might, from it, prepare a deed from him to Mrs. Caroline Bodwell, with whom he had agreed to exchange the mortgaged premises for certain property of hers. That exchange was made, and the mortgaged premises were accordingly conveyed by Mandeville to Mrs. Bodwell. He testified on his examination as a witness in this suit, that he did not know where the deed was; that he had never put it on record, and that he had, at that time, no knowledge of its existence. Klotz testifies that he has no recollection of having ever received it from him, and he says that though he has no recollection of having ever seen it, he has searched for it in his office, but cannot find it. Dunlap testifies that he is under the impression that he received it from Klotz, but does not know what he did with it, and that he has searched for it, but cannot find it. Philander Bodwell conducted the negotiation for exchange between Mrs. Bodwell, his mother, and Dr. Mandeville. He signed the agreement for her between them, for the exchange. He testifies that the exchange was in pursuance of that agreement, and that his mother was not present at the execution of the agreement or the exchange of deeds. He further says that he has no recollection of the deed from Brooks to Mandeville, or of ever having seen it, and swears that he has no knowledge of its existence. Dr. Mandeville, in his answer, says that having, at the date of the conveyance to Mrs. Bodwell, neglected to record his deed from Brooks, he delivered it to her to be recorded at the same time with his deed to her. His statement is not sustained by any proof, and it appears to be incorrect. The complainant.

Ketcham . Brooks.

has made sufficient proof of loss and diligence, to warrant the admission of secondary evidence of the covenant of assumption alleged to have been in the deed. The counsel of Dr. Mandeville insists that the subscribing witness to the deed should have been produced, or the officer before whom the acknowledgment was taken, and that because of the absence. of the testimony of either of them, without evidence of the impracticability of obtaining the testimony, the proof of the deed is insufficient. It is to be observed that the complainant is not seeking to prove title by the deed, but to prove the covenant of the grantee contained therein. The answer admits the conveyance by deed, and Dr. Mandeville testifies that the mortgaged premises were conveyed to him by Brooks and his wife, by deed, and Brooks testifies to the conveyance, by deed, and the contents of the deed, including the covenant in question. The deed, for the purpose of this suit, was sufficiently proved by the testimony of Dr. Mandeville and Mr. Brooks. The assumption might have been by parol merely, and it would have been good; Wilson v. King, 8 C. E. Green 150; Bolles v. Beach, 2 Zab. 680; having, as it is alleged, been made by covenant, (by statement contained in the deed from Brooks to Mandeville,) it was incumbent on the complainant to produce the covenant, and in case of his inability to do so, to prove the loss and present secondary evidence of the covenant. This he has done. Mr. Brooks swears positively to the existence of the covenant in the deed, and to the very words of it. It appears to have been in the form commonly in use among conveyancers in Newark, where the papers were drawn. He testifies, also, to the circumstances. He says that when the deed was delivered, Dr. Mandeville objected to the covenant, saying, "I don't know about assuming the mortgage ;" that upon Brooks' or Conselyea's, (the latter was Brooks' partner,) referring to the fact that he was requiring Brooks to assume the mortgage which was on the property which he was conveying to the latter in exchange for the mortgaged premises, and saying that, therefore, he must assume the mortgage on the property which he was receiving, he folded up the deed, slapped his