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own account, and not as the agent of the plaintiff. We have examined a number of cases deciding that a person who deposits money upon an illegal wager can recover it, and they seem to confine the right to the real depositor, and to hold that he alone can sue for the same and recover it." It may be noted that in Babcock v. Briggs (1877) 52 Cal. 502, it was held that the facts stated in the complaint, in an action by merchants against the winner, to recover money lost at play by their clerk, did not justify an attachment under the California statute. B. B. B.

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1. Where a grantor sells land encumbered by a mortgage subject to the mortgage, and the grantee assumes the payment of the mortgage, and the land is mediately or immediately reconveyed to the grantor, and in each transfer the amount secured by the mortgage is deducted from the consideration, there is an implied assumption of the indebtedness secured by the mortgage by each grantee, and the grantor, when the land is reconveyed to him, assumes the payment of said mortgage, and cannot recover from his grantee on his grantee's assumption of payment of said mortgage.

[See note on this question beginning on page 350.]

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ERROR to the District Court for Jackson County to review a judgment in favor of plaintiffs in an action brought to recover an amount which they had been compelled to pay out for the discharge of a mortgage on reconveyance to them of certain land, payment of the mortgage on which was alleged to have been assumed by defendants.

Reversed.

The facts are stated in the Commissioner's opinion. Messrs. Robinson & Whiteside, for plaintiffs in error:

The land being deeded to defendants

subject to a mortgage, the land itself became the primary fund out of which the indebtedness should be paid.

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27 Cyc. 1342, 1343; McNaughton v. Burke, 63 Neb. 704, 89 N. W. 275; Frerking v. Thomas, 64 Neb. 193, 89 N. W. 1005; Lamka v. Donnelly, 163 Iowa, 255, 143 N. W. 869; Hadley v. Clark, 8 Idaho, 497, 69 Pac. 319; United States Bond & Mortg. Co. v. Keahey,

Okla. L.R.A.1917C, 829, 155 Pac. 557; Schryver v. Teller, 9 Paige, 173; Jumel v. Jumel, 7 Paige, 591; Forgy v. Merryman, 14 Neb. 516, 16 N. W. 836; Gayle v. Wilson, 30 Gratt. 173; Stebbins v. Hall, 29 Barb. 524; Howard v. Robbins, 67 App. Div. 245, 73 N. Y. Supp. 172; Harris v. Masterson, 91 Tex. 171, 41 S. W. 482; Bailey v. Block, 104 Tex. 101, 134 S. W. 323; Greer v. Orchard, 175 Mo. App. 494, 161 S. W. 875; Fuller v. Devolld, 144 Mo. App. 93, 128 S. W. 1011; Townsend v. Wilson, 155 Ill. App. 303; Lagrave v. Hellinger, 144 App. Div. 397, 129 N. Y. Supp. 291; Fitzgerald v. Flanagan, 155 Iowa, 217, 135 N. W. 738, Ann. Cas. 1914C, 1104.

When plaintiff purchased the land back, he deducted the amount from the purchase price and therefore had in his possession the funds out of which the debt should be discharged; and having discharged the debts from such funds, he suffered no damages for which the defendants would be liable for a breach of their covenant to assume and pay.

Gregory v. Arms, 48 Ind. App. 562, 96 N. E. 196.

The consideration recited in a deed is prima facie evidence of the value.

Humphreys v. Shellenberger, 89 Minn. 327, 94 N. W. 1083; 13 Cyc. 446, 735; Hoover v. Binkley, 66 Ark. 645, 51 S. W. 73; Southern Portland Land Co. v. Munger, 36 Or. 457, 54 Pac. 815, 60 Pac. 5; Dreutzer v. Lawrence, 58 Wis. 594, 17 N. W. 423.

Messrs. Guy P. Horton and P. K. Morrill for defendants in error.

Pryor, C., filed the following opinion:

On the 18th day of December, 1909, the defendant in error George C. Turner was the owner of 160 acres of land situated in Jackson county, which land was encumbered with a mortgage, in the sum of $2,500. On that date he conveyed 80 acres of said land to plaintiffs in error, W. E. Sanderson and Raymond H. Fox, for the consideration of $250, subject to the mortgage, which the grantees, W. E. Sander

son and Raymond H. Fox, agreed to assume. On the 6th day of March, 1911, Raymond H. Fox conveyed his undivided one-half interest to said 80 acres to W. F. Sampson, for a nominal sum, and subject to the mortgage. On the 12th day of February, 1912, Sanderson and Sampson conveyed the whole of the said 80 acres to E. C. Garrison, for a nominal sum, subject to said mortgage. Thereafter, on the 21st day of August, 1912, the said Garrison conveyed the said 80 acres to J. E. Lawson, for a nominal sum, subject to said mortgage. On the 20th day of December, 1913, J. E. Lawson conveyed said 80 acres of land to Geo. C. Turner, the defendant in error, for the nominal sum of $50, subject to the mortgage aforesaid. Thereafter the said Turner, the maker of said mortgage and the first owner of the said premises, paid off the indebtedness with interest. The said Turner brought this action against Sanderson and Fox to recover the sum for which said mortgage was given to secure, and interest, under the agreement of said Sanderson and Fox to assume the same. There was judgment in the trial court in favor of the plaintiff Turner and against the defendants, Sanderson and Fox, for the amount of said mortgage, and interest. From this judgment Sanderson and Fox appeal.

The only question presented for consideration on appeal is whether or not the defendants are liable, under the circumstances, to the plaintiff, under their agreement to assume said mortgage. The plaintiff Turner had to pay the same to save the premises from being foreclosed under said mortgage. The law is well settled that, where land which is encumbered is sold subject to the encumbrance, and the amount of the encumbrance is de

assumption.

ducted from the Mortgageconsideration, there

is an implied liability on the part of the purchaser, in the absence of an express agreement, to assume the payment of the en

(Okla., 174 Pac. 763.)

cumbrance. Thompson v. Thompson, 4 Ohio St. 333; May's Estate, 218 Pa. 64, 67 Atl. 120; Braman v. Dowse, 12 Cush. 227; Smith v. Truslow, 84 N. Y. 660; Siegel v. Borland, 191 Ill. 107, 60 N. E. 863; Bristol Sav. Bank v. Stiger, 86 Iowa, 344, 53 N. W. 265; 2 Jones, Mortg. 7th ed. § 749; Heid v. Vreeland, 30 N. J. Eq. 591. "There can be no doubt at this day that, where the purchaser of land encumbered by a mortgage agrees to pay a particular sum as purchase money, and, on the execution of the contract of purchase, the amount of the mortgage is deducted from the consideration, and the land conveyed subject to the mortgage, that the purchaser is bound to pay the mortgage debt, whether he agreed to do so by express words or not. This obligation results necessarily from the very nature of the transaction. Having Having accepted the land subject to the mortgage, and kept back enough of the vendor's money to pay it, it is only common honesty that he should be required either to pay the mortgage or stand primarily liable for it. His retention of the vendor's money for the payment of the mortgage imposes upon him the duty of protecting the vendor against the mortgage debt.

This must be so even according to the lowest notions of justice; for it would seem to be almost intolerably unjust to permit him to keep back the vendor's money with the understanding that he would pay the vendor's debt, and still be free from all liability for a failure to apply the money according to his promise." Heid v. Vreeland, supra.

Where lands are conveyed in the manner of the lands in controversy, subject to the existing mortgage or encumbrance, the primary fund for the satis- Same-sale faction of the en- subject tocumbrance is the effect.

land itself. 27 Cyc. 1342; McNaughton v. Burke, 63 Neb. 704, 89 N. W. 275; Frerking v. Thomas, 64 Neb. 193, 89 N. W. 1005; Lamka v. Donnelly, 163 Iowa, 255, 143 N. W. 869;

Hadley v. Clark, 8 Idaho, 497, 69 Pac. 319.

Applying the foregoing principles to the case at bar, it is evident that it was the intention of the parties that the amount of the mortgage should be deducted from the consideration in each conveyance, and that the person ultimately becoming the owner of these lands free from the encumbrance should assume and pay off the encumbrance; that the assumption of of this indebtedness passed from the grantor to his grantee in each instance. When the lands were finally reconveyed to Turner himself, they were still charged with the encumbrance, and the assumption of payment of the encumbrance was the consideration for the payment thereof. Certainly it was not the understanding or intention of the parties that any one of the grantees, including Turner himself, should receive these lands for a nominal sum free from the encumbrance, and leave the grantor with the responsibility of paying off the indebtedness. The principal consideration of each conveyance was the assumption of the encumbrance, and it would certainly neither be just nor equitable that Tur- conveyance to ner should receive these lands back free from encumbrance. Neither should the defendants pay the encumbrance, when they are receiving nothing. When Turner repurchased the land, he received it subject to the mortgage, and reassumed the payment of the same. The application of the foregoing rules in this instance clearly does justice and equity to all persons involved in the controversy.

Same-re

mortgagor.

The judgment of the trial court therefore should be reversed and remanded, with directions to enter judgment for the defendants, Sanderson and Fox.

Per Curiam:

Adopted in whole.

Petition for rehearing denied September 17, 1918.

ANNOTATION.

Assumption of mortgage as affected by subsequent reacquisition of title by mortgagor or an intervening grantor.

Apparently the only other decision involving the question above stated is Ingram v. Ingram (1898) 172 II. 287, 50 N. E. 198, in which the difference in the circumstances involved appears to justify a different conclusion than is reached in SANDERSON V. TURNER, ante, 347. In the Illinois case it appeared that a son conveyed to his father, for value, a farm, subject to a mortgage which the father, as part of the consideration for the conveyance, assumed and agreed to pay. Subsequently the father reconveyed the farm to the son as a gift, reserving to himself, however, the coal underlying the property, together with the use and possession of the property

conveyed for a period of five years and so long thereafter as he should live. The deed contained no reference to the mortgage. The evidence showed that at the time of the execution of the deed the father executed other deeds conveying to other children and grandchildren real estate with a like reservation in his favor; and that at such time he recognized the mortgage on the property as an indebtedness of his own. Upon this state of facts it was held that there was nothing to release the father from the liability which he incurred by the contract and assumption of the indebtedness existing by reason of the mortgage. E. S. O.

J. P. PARKER, Plff. in Err.,

V.

STATE OF FLORIDA.

Florida Supreme Court-May 24, 1918.

(Fla., 78 So. 980.)

Indictment - larceny ownership.

1. Where a wife's property has become the subject of larceny, the ownership thereof in an indictment for such larceny can be properly laid in either the husband or the wife, where they live together,-in her because of her legal ownership, and in him because of his special ownership as custodian.

[See note on this question beginning on page 352.]

Same custodian

variance.

2. Where an indictment lays the ownership of stolen property in one who is its lawful custodian and entitled to its possession, the ownership is sufficiently alleged, and it is not a fatal variance if Headnotes by BROWNE, Ch. J.

the proof shows that the legal title to the property was in someone other than the person in whose possession it was. and who had the care and management of it.

ERROR to the Circuit Court for Alachua County to review a judgment convicting defendant of larceny of a cow. Affirmed.

The facts are stated in the opinion of the court.

(Fla. - 78 So. 980.)

Mr. W. S. Broome for plaintiff in

error.

Messrs. Van C. Swearingen, Attorney General, and C. O. Andrews, Assistant Attorney General, for the State:

If the property stolen belonged either to the wife or the husband, or both, the indictment alleging the owner as being the husband would be supported by proof that the property was not, strictly speaking, the husband's, but that of the wife.

Kennedy v. State, 31 Fla. 428, 12 So. 858; Leslie v. State, 35 Fla. 171, 17 So. 555; Com. v. Bowden, 14 Gray, 103; People v. St. Clair, 38 Cal. 137; Com. v. Thompson, 9 Gray, 108; Houston v. State, 38 Ga. 165; White v. State, 49 Ala. 344; 17 R. C. L. § 72, p. 67; 3 Bishop, New Crim. Proc. 2d ed. § 726; 2 Wharton, Crim. Law, 11th ed. § 1179, p. 1402.

band, but he shall not charge for his care and management, nor shall the wife be entitled to sue her husband for the rent, hire, issues, proceeds or profits of her said property."

This statute makes the husband the lawful custodian of his wife's personal property.

In the case of Kennedy v. State, 31 Fla. 428, 12 So. 858, in passing upon the same question that is raised in this case, this court said: "In consequence of this, where the wife's property has become the subject of larceny, the ownership thereof in an indictment for such larceny can be properly laid Indictment-larin either the hus- ceny-ownerband or the wife,

ship.

where they live together,—in her because of her legal ownership, and

Browne, Ch. J., delivered the opin- in him because of his special ownion of the court:

The plaintiff in error was convicted in the circuit court of Alachua county for larceny of a cow, and seeks reversal here on writ of

error.

The sole question presented by the assignments of error is an alleged variance between the allegation in the indictment and the proof of ownership of the cow.

The indictment alleges that the cow was "of the property, goods and chattels of L. J. Knight." On the trial Knight testified in chief that he owned the cow. On cross-examination he said: "The cow was mine. It was ours, my wife and mine, common property. My land is in my wife's name, but my personal property is not. The cow was mine."

The defendant testified that Mrs. Knight, the wife of the person whom the indictment alleged was the owner of the cow, told him the cow belonged to her, and that he would have to settle with her for it. One other witness testified that he heard Mrs. Knight say in the presence of her husband that the cow belonged to her.

Section 2589 of the General Statutes of 1906 provides that "the property of the wife shall remain in care and management of the hus

ership as custodian."

The rule is thus laid down in 17 R. C. L. § 72: "The exact state of the title of stolen property is of no particular concern of the thief, except that it must have been in someone else; hence evidence of possession is ordinarily sufficient proof of ownership; and this is true although the one in possession may have held the property as bailee, trustee, or otherwise, having only a special interest, and not a general ownership of the property. Therefore ownership is sufficiently proven where it is shown that the person alleged to be the owner had a special property in the stolen article, or that he held it in trust. As it is not necessary to show in detail the exact state of the title, general evidence of property is admissible, and is as sufficient in criminal as in civil cases."

In the case of State v. Tillett, 173 Ind. 133, 140 Am. St. Rep. 246, 89 N. E. 589, 20 Ann. Cas. 1262, it was said: "It is well settled: (1) That it is proper in a prosecution for larceny to describe the property as that of the real owner, or of the person in possession; (2) it may be alleged to be the property of one who is in possession as bailee, agent, trustee, executor, or administrator; (3) such bailee, agent, trustee, executor,

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