Opinion
File No. 193950
The defendants, who had purchased property from the plaintiff subject to a mortgage, and who had made payments on that mortgage for three years, sold the property to D. D thereafter defaulted on the mortgage and the mortgagee brought an action against the plaintiff for the unpaid balance. Since the plaintiff did not establish, by clear and convincing proof, that the defendants had agreed to assume the mortgage, the court rendered judgment for the defendants. The plaintiff's claim that the defendants orally promised to pay the mortgage was unavailing since, by statute (§ 52-550 [a] [2] ), such a promise must be in writing.
Memorandum filed February 23, 1984
Memorandum of decision in action for damages resulting from the defendants' alleged assumption of a mortgage. Judgment for the defendants.
Thomas L. Kanasky, Jr., for the plaintiff.
Zeisler Zeisler, for the named defendant.
The plaintiff negotiated with the defendants for the sale of his property to them. A contract was drawn up which provided for a sale price of $38,000 and a mortgage contingency of $28,000. A $1000 deposit was made, with the balance to be paid at the closing. The defendants told the plaintiff that they were unable to secure financing, and further negotiations ensued. On June 18, 1976, the defendants executed a $5000 promissory note to the plaintiff, and the plaintiff conveyed a warranty deed to the defendants. The deed states that the property was conveyed subject to "a prior mortgage as of record appears." The defendants held the property for three years, and made mortgage payments to the bank. The defendants sold the property to Michael Donadeo in March, 1979. Subsequent to this sale, the mortgage payments were defaulted on, and City Savings Bank, the holder of the first mortgage, brought suit against the plaintiff for the unpaid balance of the mortgage.
The plaintiff contends that after it was determined that the defendants could not obtain financing, the defendants subsequently agreed orally with the plaintiff that they would assume the plaintiff's mortgage. The defendants contend that the later agreement was that they would take title subject to the existing mortgage, which would be deducted from the contract price, and give the plaintiff a second mortgage for $5000, and would pay the balance of the contract price, in cash, to the plaintiff.
A grantee taking property subject to a mortgage and not assuming the debt secured thereby is not personally liable for payment of the mortgage debt. Lenox Realty Co. v. Hackett, 122 Conn. 143, 147, 187 A. 895 (1936). A purchaser of mortgaged property may become personally liable for the mortgage debt. 59 C.J.S., Mortgages § 406, p. 571. An agreement to assume a mortgage debt may be contained in the deed; Tarcyak v. Bakasis, 120 Conn. 656, 658, 182 A. 406 (1936); or by an antecedent agreement. Raffel v. Clark, 87 Conn. 567, 571, 89 A. 184 (1913).