Page:Federal Reporter, 1st Series, Volume 3.djvu/792

 HAYDEN V. DRCRY. 785 �and whetlier or not the clause of assumption in the deed from Daggett to Drury truly expressed the c on tract between the parties as to the payment of the said indebtedness. �From a eareful consideration of the testimony I have comô to the conclusion that it was not the agreement or intention of Daggett and Drury that Drury should assume and agree to pay the indebtedness secured by these two mortgages, and that the clause in the deed to him, whereby he was made to assume and pay them, was inserted without his knowledge, and by mistake of the attorney who prepared the deed. My reasons for this conclusion are — First, that the proponderance of evidence on the question is largely in favor of the defend- ant. The testimony of Daggett, Whipple, and the defendant Drury on this point is so full and circumstantial as to leave almost no room for doubt on the question. They ail testify unequivocally that it was expressly understood that Drury was not to assume the encumbranoes, or either of them, and Drury said that he had no knowledge of the assumption clause in the deed to him until his attention was called to it by Mr. E. C. Larned, in April, 1877. Second, there was no motive or inducement for Daggett to exact such terms from Drury, his grantee, as Daggett had not assumed or agreed to pay the indebtedness. There was, therefore, no reason why he should gratuitously interest himself in securing a contract from Drury for the benefit of the mortgagee. Third, the nature of the transaction weighs heavily against the probability that any sane busines man would have assumed such a liability. The proof shows that Drury exchanged a farm in Mercer county, this state, for this and two other pieces of heavily- encumbered Chicago real estate; that the transaction took place in 1876, and that on the twenty-fifth of July. 1878, only a little over two years after, the property in question was sold under the decree of foreclosure on the first mortgage for $28,000, and that no surplus was obtained by such sale to apply on this mortgage. This circumstance, in my mind, tends strongly to corroborate the testimony of Daggett, Whip- ple, and Drury, that Drury only intended to purchase the equity, but did not intend to assume the prior indebtedness, �v.3,no.l3— 50 ����