Two years ago, a builder constructed a house for a woman and conveyed that house to her for
$300,000 at the closing by a warranty deed, which was promptly recorded. The sale contract
contained no express warranties relating to the condition of the house. To finance the purchase,
the woman borrowed $200,000 from a local bank secured by a mortgage on her new house. The
mortgage note provided that in the event of the woman’s failure to make two consecutive
monthly mortgage payments, the balance would become immediately due and payable. The
mortgage was promptly recorded.
One year ago, the woman accepted a new job and moved. At that time, her house was worth
$360,000 and there was a balance on the mortgage of $195,000. She sold the house to a man and
delivered a quitclaim deed to him in exchange for $160,000. The quitclaim deed was promptly
recorded and made no reference to the woman’s mortgage obligation. The mortgage obligation
was not discharged at the closing. However, the man immediately began to make the woman’s
monthly mortgage payments to the bank after the closing.
Nine months ago, water seeped into the basement of the house during a major storm, causing
substantial damage. It is undisputed that the seepage was due to defective concrete used by the
builder and not to any negligence on the builder’s part. The man called the builder, told him
about the seepage, and demanded that the builder fix the concrete. The builder responded:
"That’s your problem." The man then repaired the concrete at a cost of $80,000.
Thereafter, the man sued the builder to recover the $80,000 he had spent to repair the concrete.
While the case was pending, the man stopped making mortgage payments. The bank sued the
man to foreclose on the mortgage and, if necessary, obtain a deficiency judgment against him on
the note if the sale proceeds were insufficient to discharge the mortgage debt. The man has
joined the woman as a third-party defendant in the lawsuit.
1. Is the man likely to prevail against the builder to recover the $80,000 he spent to repair
the concrete? Explain.
2. Is the man personally liable for the outstanding balance on the mortgage note between the
woman and the bank? Explain.
3. If the bank is successful in its foreclosure action, will the man be able to recover damages
from the woman? Explain.