
    Shockley, Respondent, vs. Roelli and others, Respondents, and Olson and another, Appellants.
    
      December 7, 1925
    
    January 12, 1926.
    
    
      Mortgages: Agreement of purchaser of lands to pay: How evidenced: Parol promise.
    
    1. An agreement by a purchaser of land to pay a mortgage thereon need not be in the deed of conveyance, but may be in a land contract pursuant to which the deed is given, or it may be an oral promise, p. 565.
    2. Where a vendor at the request of the vendee, who had agreed to pay the mortgage, conveyed the land to another, the vendor performed his contract with the vendee, and the latter was liable for a deficiency on foreclosure of the mortgage, p. 565.
    Appeal from a judgment of the county court of Lafayette county: J. B. Simpson, Judge.
    
      Affirmed.
    
    Action to foreclose a mortgage. The trial court found these facts: Roelli and wife entered into a written land contract with Oscar J. Olson and Melvin J. Olson for the purchase of certain tracts of land wherein the Olsons, as a part of the purchase price, agreed to pay two outstanding mortgages against the land. Before the time came for the delivery of a. deed to the Olsons they sold the land to Mrs. 
      
      Lee. The Roellis offered to deed to the Olsons, but they were requested by the Olsoi'is, as an accommodation to them, to name Mrs. Lee as the grantee in the deed, and they did so and delivered the deed to the Olsons and they to Mrs. Lee. She gave a new note and a new mortgage to plaintiff for the two old ones and it is this latter mortgage that is foreclosed. The trial court held that in case of a deficiency the parties were personally liable in the order named — MAr. Lee, the Olsons, and the Roellis. From a judgment entered accordingly the Olsons appealed.
    For the appellants there was a brief by Conley & Conley of Darlington and Kopp & Brunckhorst of Platteville, and oral argument by L. A. Brunckhorst and E. F. Conley.
    
    
      John J. Boyle of Darlington, for the respondent Roelli.
    
   Vinje, C. J.

The facts found by the trial court are sustained by the evidence, and the only question raised by the appeal is one of law. Are the Olsons personally liable for a deficiency judgment? They claim they are not because no deed assuming liability of the mortgage was executed or. delivered to them. 'The defense fails for two reasons: First, the agreement to pay a mortgage need not be in the deed. It may be in a separate instrument. Here it was contained in the land contract. That was sufficient. 4 Ballard, Ann. Law Real Prop. sec. 535; 3 Tiffany, Real Prop. (2d ed.) § 623; 14 Ballard, Real Prop. § 546; 2 Dev-lin, Deeds (3d ed.) § 1067. The promise may be enforced even though it is only an oral one. 4 Ballard, Ann. Law Real Prop. sec. 535; 2 Devlin, Deeds (3d ed.) § 1073. Second, the deed from the Roellis to Mrs. Lee was a substituted performance of the contract between them and the Olsons and bound the Olsons as effectively as though the deed had been to them. Webster v. Tibbits, 19 Wis. 438. In this case A. agreed to convey land to B., but at B.’s request he conveyed it to- C. Held, that A. had performed his contract with B. and could maintain an action against him for the unpaid purchase money.

In Pike v. Seiter, 15 Hun, 402, we have a parallel case. Seiter entered into a written contract for the purchase of land and agreed therein to pay a mortgage on it. When it came time to deliver the deed, at Setter's request it was made to his wife. Held, Seiter was personally liable for a deficiency. See, also, 2 Devlin, Deeds (3d ed.) § 1072.

By the Court. — Judgment affirmed.  