Leipold v. Epler

<p>Abstract of the Decision.</p> <p>■ 1. Contracts, § 5*—what constitutes collateral agreement. A contract to assume an incumbrance on land purchased is not one of the essential parts of a deed of conveyance, and is in fact extraneous and collateral to it.</p> <p>2. Mortgages, § 227*—when grantee not bound by recital in deed to pay existing incumbrances. A recital in a deed that the grantee assumes and agrees to pay existing incumbrances on the property conveyed is not, in and of itself, sufficient to fix the liability to pay without proof that such grantee assented to the clause recited.</p> <p>3. Estoppel, § 21*—when grantee not estopped by recital of deed. A grantee is not estopped by the recital of a deed which he does not execute.</p> <p>4. Deeds, § 29*—when undertaking in deed not enforceable. An undertaking by a grantee recited in a deed is collateral to it, and if the promise fail or be shown to have been the result of fraud or mistake, the undertaking will not be enforced.</p> <p>5. Mortgages, § 228*—when fraud defense to agreement to assume incumbrances. Where there is a recital in a deed that the grantee assumes and agrees to pay certain mortgages on the property conveyed and the grantee discovers fraud in the transaction, he is not limited to recoupment or to returning the property and suing for a return of the consideration, but may make use of the fraud to defeat an action by the grantor for breach of the contract.</p> <p>6. Contracts, § 1*—what constitutes simple contract. An undertaking of a grantee recited in a deed to assume and pay incumbrances on the property purchased is a simple contract.</p> <p>7. Contracts, § 7*—when fraud a defense. Fraud is a good defense to an action on a simple contract.</p> <p>8. Vendor and purchaser, § 35*—when fraud fatal to title. Fraud practiced by the party seeking the remedy upon him against whom it is sought, and not that which is the subject-matter of the action or claim, is fatal to his title.</p> <p>9. Principal and agent, § 155*—when principal may not receive benefit of unauthorized act of agent. A principal cannot receive the benefit of unauthorized acts of his agent which are in fact fraudulent.</p> <p>10. Principal and agent, § 131*—when principal liable for benefits due to unauthorized acts of agent. A principal who has actually received the benefit of money procured by the unauthorized acts of his agent will be liable in the amount he has received the benefit of.</p> <p>11. Fraud, § 115*—when evidence sufficient to sustain finding that agreement by grantee to assume mortgages was fraudulently procured. In an action by a grantor to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, where the defense to the action was fraud and where the evidence was conflicting, evidence examined and held that a finding by the jury that the agreement was procured by a fraudulent scheme concocted by the grantor and his agent was not manifestly wrong.</p> <p>12. Mortgages, § 226*—when evidence sufficient to sustain finding that grantee did not intentionally assent to agreement to assume incumbrances. In an action by a grantor to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, evidence examined and held to warrant the jury in finding that defendant never knowingly and intentionally assented to the contract recited.</p> <p>13. Fraud, § 133*—when instructions on fraud as defense to contract not erroneous. Instructions framed on the theory that the presence of actionable fraud inducing damage to any extent is a complete defense to an action on a simple contract are not erroneous.</p> <p>14. Instructions, § 118*—when instruction on effect of fraudulent representations by agent of vendor in procuring agreement to assume incumbrances not erroneous. In an action to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, where the defense was that the agreement was procured by a fraudulent scheme concocted by plaintiff and his agent, an instruction relative to the effect of the fraudulent representations of plaintiff’s agent in pursuance of the scheme is not erroneous although there is no direct evidence that plaintiff had anything to do with that portion of the scheme to which the representations related, if there is evidence that plaintiff and his agent were co-operating generally in the transaction by which plaintiff was defrauded.</p>