
    Brewer v. Maurer.
    The plaintiff held the notes of B., secured by a mortgage on his land. B. conveyed the land to a married women, by deed of general warranty, in consideration of a sum of money paid, and of her accepting a deed in which “said grantee assumes ... as part of the purchase money,” said mortgage debt. This was the only separate property she possessed. She conveyed the land to F., and1 he conveyed to defendants by like deeds, each containing a stipulation in favor of their grantors that the grantees assumed and agreed to pay the mortgage debt as part of the purchase money. Upon foreclosure and sale, the proceeds were insufficient to pay the mortgage debt.
    
      Beld: 1. That, aside from the disability of coverture, the acceptance by the married woman of the deed from B., containing the clause, that said grantee assumed as part of the purchase money, the mortgage debt, was an agreement between herself and her grantor to pay the mortgage debt as part payment of the consideration agreed by her to be given for the land. The transaction was not a purchase of the equity of redemption, subject to the mortgage, but of the land in fee, with a stipulation as to the manner in which the purchase money agreed upon by the parties should be paid.
    2. A married woman owning real estate, as her separate property, has legal capacity, her husband joining, to convey the same to her vendee, and she may stipulate for such terms of payment of the purchase money as she may think best. After her conveyance is executed and delivered, her grantee is legally bound to pay the consideration money in the manner stipulated, the same as if she were a femme sole.
    3. The defendants, as grantees of F., having agreed with him to pay this debt as part payment of the purchase money, were liable to the mortgagee on such promise, in an action to recover the deficiency.
    4. In such an action by the mortgagee it is a good defense to show that before the plaintiff has assented to or acted on the promise made in his favor, the agreement has been rescinded.
    
      Error to the District Court of Cuyahoga county.
    January 27,1872, George Braundel executed and delivered to Martin Maurer, sixteen promissory notes of $100 each, the first becoming due in six months, and the others at intervals of three months thereafter, the last being due April 27, 1876 ; and at the same time, secured the same by a mortgage on real estate. Subsequently, he paid one of these notes.
    May 2, 1875, by a deed of general warranty, he sold and conveyed said real estate to Mary Braundel, a married woman, for the sum of $500 in cash, and her assumption of his mortgage debt aforesaid, as part of the consideration. This assumption to pay, is contained in the deed to her, and is in the following words: “ Said grantee assumes a certain mortgage given by grantor to Martin Maurer, January 27, 1872, and interest thereon, as part of the purchase money.”
    Mary Braundel entered into possession of the land, having no other separate estate, and on October 13,1875, by warranty deed, her husband joining, sold and conveyed the same to one L. B. French, he assuming as part of the consideration, to pay said mortgage debt, by excepting said deed with the following clause inserted: “ This deed is made subject to a certain mortgage for $1,500, made by George Bi’aundel to M. Maurer, and which the grantee hereby assumes and covenants to pay.”
    On December 24,1875, French, by a like conveyance, sold this real estate to W. G. Brewer and S. Truseott, plaintiffs in error herein, under a like agreement as to the mortgage debt. In French’s deed to Brewer and Truseott, is this agreement: “ The above is made subject to a certain mortgage for $1,500, made by George Braundel to M. Maurer, and which the said grantees hereby assume and agree to pay, together with the interest thereon.”
    Two of said notes were not yet due. Whether the condition of the mortgage was broken by non-payment of prior notes, does not clearly appear.
    After these notes all became due, Maurer foreclosed the mortgage, and sold the premises at judicial sale, realizing therefrom only $650.61, leaving abalance due to him July 17, 1878, of $1,093.78.
    The object of the action in this case was, to recover this balance from Brewer and Truscott on their agreement with French.
    In addition to the foregoing averments found in the petition and answer, the defendants, by way of defense, pleaded, 1st, that Mary Braundel, at the time she assumed to pay this mortgage debt, was a married woman, and, 2d, “that since said 24th day of December, A. n. 1875, when said deed containing said covenant was executed and delivered, the said L. B. French, the grantor of these defendants, and in whose deed said covenant is contained, for a good and valuable consideration, has released and discharged these defendants of and from any and all liability to him, the said French, on account of the aforesaid covenant, and that thereby the defendants are wholly discharged and released therefrom, and that plaintiff, by reason thereof, cannot have and maintain his aforesaid action against these defendants.”
    Upon a demurrer to defendants’ answer, the court of common pleas held the defendants liable, and rendered á judgment against them. This judgment was affirmed in the district court.
    
      E. Sowers, for plaintiff in error:
    1. Aside from the question of coverture, the covenant in the deed of George to Mary Braundel, is not such as will enable Maurer to maintain an action thereon against Mary Braundel. Thompson v. Thompson, 4 Ohio St. 333, 349, 353, 354. This case was decided on the assumption that Thompson did not expressly promise to pay the debt. Moore's Appeal, 88 Penn. St. 450; 1 N. J. Eq. 330; Bassett v. Bradley, 48 Conn. 224; Fisk v. Tolman, 124 Mass. 254. See ease and note to the last cited case in 26 Am. R. 659-667; Prentice v. Bremhall, 123 Mass. 291; Nat. Bank v. Segur, 39 N. J. 173.
    2. 'We claim that the covenant contained in the deed from George to Mary Braundel is of no legal force or effect as to her by reason of her coverture. Rosenthal v. Mayhugh, 33 Ohio St. 155; Foster v. Wilcox, 10 R. I. 443; Griner v. Butler, 61 Ind. 362. The law of Ohio respecting married women was the same when the land was conveyed to Mary Braundel, and by her conveyed to Erench, as at the time Rosenthal v. Mayhugh was decided. 58 Ohio L. 54, 55; 63 Ohio L. 47, 48. The acts of March 30, 1870, 68 Ohio L. 48, and of March 30, 1874, 71 Ohio L. 47, 48, make no material change, in this respect, in the acts in 58 and 63 Ohio L. Jenz v. Gugel, 26 Ohio St. 527.
    3. If no legal liability attached to Mary Braundel by reason of the covenant in the deed of George to Mary in respect to the Maurer mortgage, then we claim that Maurer cannot maintain an action against the plaintiffs in error for any deficiency due upon the mortgage after the sale of the property on foreclosure. Maurer’s mortgage contract had reference to the land. He gets all he contracted for. He can get no more, unless his debtor, George Braundel, by a valid contract had obtained additional security for the debt due Maurer. George Braundel’s security so derived may in equity inure to the benefit of his creditor, Maurer. But the right Maurer may obtain is a derivative right, which comes to him by virtue of the equitable right of subrogation ; his debtor’s legal rights in respect to his debt he has by the principle of subrogation an equitable right to enforce. To this point we cite the following authorities : King v. Whitely, 10 Paige, 465; Garnsey v. Rogers, 47 N. Y. 233; Trotter v. Hughes, 12 N. Y. 74; Vrooman v. Turner, 69 N. Y. 280; Crowell v. Currier, 27 N. J. Eq. 152. Nat. B’k v. Segur, 39 N. J. Eq. 173; 29 N. J. Eq. 257, 261-266; Dunning v. Leavitt, 85 N. Y. 30; s. c., 39 Am R. 617-620; Trimble v. Strother, 25 Ohio St. 378.
    4. Mary Braundel was not equitably liable for the mortgage debt. Story’s Eq. Jr. § 1041; 29 N. J. Eq. 257; Phillips v. Graves, 20 Ohio St. 371. But if we are wrong ; if on such a covenant an equitable liability may exist; if the chancellor may roam at will through the deed and determine that an equitable liability arises upon covenants therein which are void in law; then we insist that the part of the consideration which sustained this covenant goes no further than the wife’s “ separate property,” and this having been applied, as the record shows, no considerations exist to sustain an action for the deficiency. 26 Ohio St. 527; 20 Ohio St. 371; 17 Law Rep. 454, Ch. Div.
    5. Rut we are discharged, even if once liable, by the release from French, our grantor. 27 N. J. Eq. 152, 650; 24 N. Y. 170.
    
      Charles F. Morgan, for defendant m error:
    1. A want of liability on the part of Mary Braundel, or French her grantee, would not affect the question of the liability of the plaintiffs in error. Moorman v. Moore, 90 Pa. St. 78; Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Mich. 10.
    2. A grantee in a deed, who has assumed the payment of a mortgage, cannot escape liability by reason of a want of liability on the part of his gi-antor, by reason of the personal disability of coverture. Comstock v. Smith, 26 Mich. 307; Jones on Mort. § 116; Cushman v. Henry, 75 N. Y. 103; Hyler v. Atwood, 26 N. J. Eq. 504.
    3. For the plaintiffs in error and their grantor to be allowed to take the title to the land through another from the original grantor and mortgagor, and escape liability upon an agreement to pay the purchase price because they received it throúgh a person who could not make a valid assumption because of a personal disability, would operate as a fraud upon the rights of such original grantor. Thompson v. Thompson, 4 Ohio St. 351.
   Johnson, J.

The plaintiffs in error are the grantees through mesne conveyances of George Braundel, who had executed a mortgage to defendant in error, to secure sundry notes. Upon foreclosure and sale of the mortgaged premises, there was a deficiency. The single question arising in this case is, can the mortgagee maintain an action for this deficiency against the plaintiffs in error ? The mortgagee’s claim to such an action is based upon the covenants or agreements to pay the debt, contained in the deed of French to plaintiffs in error, dated December 24, 1875. The plaintiffs in error resist this claim on three grounds : 1st, that aside from her disability of coverture, Mary Braundel did not make such a covenant with her grant- or, George Braundel, to pay the mortgage, as would inure to the benefit of the mortgagee for this deficiency; 2d, that her covenant contained in the deed to her, was of no legal force by reason of her coverture, and therefore, the covenants of French and of Brewer and Truscott, successive grantees from her, ai’e without legal force, on the ground that such a promise, to be effective, must be made to a person legally or equitably liable, and as Mary Braundel was not so liable, neither are her grantees bound thereby on their covenants; and,’ 3d, but even if plaintiffs in error were so liable by reason of the covenants in the deed to them from French, they were discharged by the release pleaded.

1st. As to the character of the agreement, contained in the deed from the mortgagor to Mary Braundel, aside from any question of coverture. She purchased of George Braundel, the mortgagor, May 3, 1875, paying in cash, five hundred dollars, and taking a general warranty deed containing the following clause: “ said grantee assumes a certain mortgage given by grantor to Mai’tin Maurer, January 27, 1872, and interest thereon, as part of the purchase money P This was not a purchase of the equity of redemption merely, but of the fee, protected by covenants of general warranty, the" purchaser agreeing, as part of the purchase money, to assume the mortgage debt.

"We may assume, for the purposes of this case, that one who purchases subject to a mortgage, is not bound, either expressly or by implication, to pay the deficiency of mortgage debt, even as between him and his grantor. Such a deed is construed as a purchase of the equity of redemption merely.

In a recent case (Fisk v. Tolman, 124 Mass. 254), this was held to be so, where the deed accepted was subject to a specified mortgage, which is part of the above named consideration.” It was held, where the consideration named was $11,000, and was subject to a mortgage of $7,000, part of that consideration, that there was no promise to be inferred from the acceptance of the deed on the ground that this clause contains a reference to the consideration. In this and other cases that might be cited, the construction of the transaction is that the purchaser takes only the equity of redemption, and assumes the burden, only so far as the land will go. At most, such a transaction is only one of indemnity as between grantor and grantee, and not a promise to assume and pay the debt that inures to the benefit of the mortgagee.

To determine, therefore, the effect of the contract of Mary Braundel, by accepting the deed containing the assumption to pay this mortgage, as part of the purchase money, we must determine whether it was a purchase of the equity of redemption, or of the land in fee, with an agreement to pay the purchase money in part, by the payment of the mortgage debt. In such case, the purchaser is personally liable to pay the pur-' chase money as agreed.

Mary Braundel’s contract with her grantor was, to pay a certain consideration for a conveyance in fee, to wit, $500, to her grantor, and she was to assume, as part of that consideration, a mortgage of $1,500 and interest.

As between grantor and grantee, this was a promise to pay the $1,500 and interest, by doing which, she would discharge her obligation.

Treating her as a femme sole, it was a binding covenant to pay, enforceable by the grantor or his mortgagee. Such was the manifest intention of the parties. Huyler v. Atwood, 26 N. J. Eq. 504; Pike v. Brown, 7 Cush. 133; Mainwarring v. Powell, 40 Mich. 371; Torry v. Bank of Orleans, 9 Paige, 649; Thayer v. Torrey, 37 N. J. Eq. 339; Comstock v. Drohan, 71 N. Y. 9; Miller v. Thompson, 34 Mich. 10; Heem v. Vogel, 69 Mo. 529; Fitzgeral v. Barker, 70 Mo. 685; Bassett v. Bradley, 48 Conn. 225; Braman v. Dowse, 12 Cush. 227; Tichenor v. Dodd, 3 Green Ch. 454. It is conceded by counsel for plaintiff in error, that where there is such a valid covenant between mortgagor and his grantee, it inures to the benefit of the mortgagee.

2. This brings us to the 2d point, namely, that by reason of her coverture, the agreement of Mary Braundel to pay this debt as part payment of the purchase money, was void at law and good in equity to the extent only of the land purchased, and that inasmuch as she was not liable personally for any de*ficiency, her contract with French by which she agreed to pay the debt, was not enforceable for such a deficiency, and. for the same reason, Brewer and Truscott are not liable.

In Vroomer v. Turner, 69 N. Y. 280, it is held that a grantee of mortgaged premises, who assumes and agrees to pay the mortgage as part of the consideration, is not liable for a deficiency arising upon a foreclosure and sale, in case the grantor was not personally liable, legally or equitably, for the payment of the mortgage debt. To the same purport are the following cases : King v. Whitely, 10 Paige, 465; Garnsey v. Rogers, 47 N. Y. 233; Trotter v. Hughes, 12 N. Y. 74; Crowell v. Currier, 27 N. J. Eq. 152, 650; Nat. Bank v. Segur, 39 N. J. Eq. 173; 29 N. J. Eq. 257, 261-266; Dunning v. Leavitt, 85 N. Y. 30; s. c., 39 Am. R. 617-620.

These eases rest upon the theory, that as the grantor is not personally liable for the mortgage debt, the promise of the purchaser is without consideration to support it, and is, therefore, a nudum pactum, and that, as the right of the mortgagee is derivative merely, to be substituted to his debtor, he can only maintain an action where his debtor could.

As, in this case, the privity existed between the mortgagor and mortgagee, which would give the latter a right to be substituted to the former, on the promise of the purchaser, the only question in fact is, was there a sufficient consideration to support the promise of the plaintiffs in error ?

It may now be regarded as the settled law, that where a valid promise is made to one for the benefit of another, the latter may maintain an action thereon, in his own name. Trimble v. Strother, 25 Ohio St. 378; Burr v. Beers, 24 N. Y. 178; Lawrence v. Fox, 20 N. Y. 268; Pardee v. Treat, 82 N. Y. 385. This last, case is important as one of the latest expositions of the conflicting cases in New Fork, where the promise relates to a mortgage on land. The principle stated on page 385, clearly is, that, if the grantee is bound to pay the debt as his own, he is liable to the mortgagee. The ground upon which the cases rest, that hold that if the grantor is not liable to the mortgagee, the promise of his grantee is invalid, seems to be either want of privity, or want of consideration to support the promise of the grantee. That there is such a privity here, is conceded. If there is a valid consideration to support the promise of the plaintiffs in error, and their grantor, French, no reason is perceived why they should not be bound.

Thus, in Lawrence v. French, 20 N. Y. 268, where one Holly loaned to defendant a sum of money, in consideration that he would pay a like sum to plaintiff, the latter might maintain an action against defendant on his promise to Holly..

In Vrooman v. Turner, supra, it is said : There must be either a new consideration, or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement.” This is the doctrine of Thorp v. The Keokuk Coal Co., 48 N. Y. 253. There the mortgagor was not personally liable for the debt, but only for a deficiency upon 'foreclosure. He conveyed the premises to the defendant, subject to the mortgage, which the grantee assumed to pay. In an action by the holder of the mortgage against the grantee, to recover the whole debt without foreclosure, it was claimed, that as the grantor was only liable for the deficiency, that was the extent of the grantee’s liability,, therefore, no action would lie for the whole debt, nor until after foreclosure. It is stated by the court, as the foundation of the right of action in such a case, that “ it is sufficient if the-promise be made by the promisor upon a sufficient consideration passing between him and the promisee, and when the third person adopts the acts of the promisee in obtaining- the-promise for his benefit, he is brought in privity with the- promisor, and he may enforce the promise as if it were madfe-dir.ectly to him.”

Again, It matters not that the mortgagor was-not liable-to pay personally, until after foreclosure, and then only for the deficiency. It would have made no difference-if he had not been liable at all, the defendant having promised^ upon a• sufficient consideration, to pay the debt.”

The case of Paige v. Whitely, 10 Paige, 465, is said to be-contrary to this, but in fact is only another phase of. the question. There it was not claimed there was any other consideration to support the promise than the conveyance of the equity of redemption, subject to the mortgage debt, which he was to pay as part of the consideration. In that case the grantors, who were not liable, conveyed by quit-claim.

This question arose in Merriman v. Moore, 90 Pa. St. 78. That was an action, like the present, to recover for a deficiency, against a grantee, who held under a deed, subject to a mortgage which the grantee had verbally assumed to pay as part of the purchase money. There, as here, it was insisted, that as the grantor was under no personal obligation to pay the debt, his grantee’s promise to pay the same was not binding, for want of a consideration.

The court say, the consideration was the price of the land. It was nothing to the grantee what the grantor did with the purchase money. He might direct how it should be paid. If the vendee agrees to pay it as the vendor directs, the former cannot set up, as a defense, that his vendor was under no duty to apply it in that way. If this principle be sound, and I see no reason - to question it in a case like the present, then it follows, that the plaintiffs in error are liable on their covenant to pay, even though Mary Braundel was not. French, when he sold the land to them, made his conveyance subject to this mortgage, which they agreed to pay, as part of the purchase money.

He, for reasons that are obvious, having assumed this debt, and having warranted the title, devoted a portion of the purchase money, equal to the debt, to its discharge. At that time, the debt was not all due. The promise was to pay the purchase money in the way specified in said mortgage. It was a promise for the benefit of all prior grantors, including the mortgagor. No reason .can be perceived, why, in the furtherance of justice, the plaintiffs in error should not pay the purchase money in the manner they had contracted to pay, and therebj' relieve the mortgagor, through whom they claim, from his liability.

We do not, however, assent to the doctrine that the coverture of Mary Braundel rendered her promise void. It was in equity good to the extent of the real estate purchased, and might in her hands be charged with-the debt. As a vendee in possession of land which she had capacity to buy, her contract to pay the purchase money, in the way stipulated, was, in equity, as binding as that of a femme sole, and could not be repudiated. The only limitation to this is, that it is a liability chargeable on her separate estate for which she is not personally. bound, beyond such separate estate.

Although she would not have been personally liable for any deficiency, either to her grantor or to the mortgagee, yet she was in possession of a fee simple title, which she could convey. Having capacity to convey (her husband joining), she was legally capable of stipulating for the amount and manner of payment of the purchase money. French’s notes to her for the same, would have been valid. It would have been no defense to an action on them that she was a.femme covert. She would not have been liable personally on a covenant to convey, or on her covenants of warranty in her deed to French, but having, by a valid conveyance, fully executed the contract on her part, her grantee could not plead her coverture to escape the performance of his obligation made to her, as to the payment of the purchase money. Had her contract with her grantee been executory merely, such a plea might have availed him, but being executed on her part, French could not escape the performance of his promise. The promise of French to her was, therefore, a valid contract. The consideration for it was the purchase money, which she had the right to stipulate for, and direct how it should be paid, and which he agreed to pay in the manner stated. Upon her executing the conveyance to him, his promise to her was as binding as if she were a femme sole. This being so, he was personally bound, and in like manner, his grantees became bound to him. The several grantees being in privity with the mortgagor, the chain is perfect.

In Meiley v. Butler, 26 Ohio St. 535, this court held that where a married -woman had induced a purchaser to buy land owned by her, by agreeing that he might deduct from the purchase money a debt due him from her husband, she could not, after a conveyance of the land, repudiate this agreement as to the husband’s debt, and compel the purchaser to pay the contract price to her. So in the present case, after inducing French to buy, agreeing that he might deduct from the purchase money, sufficient to pay off a mortgage on the land, and thus make the title clear, she could not, after the deed was executed, repudiate the contract, and compel him to pay to her this amount, leaving the incumbrance on the land.

Our conclusion is, that the covenants of her grantees are invalid, notwithstanding her coverture.

III. The only remaining question is, whether the release of defendants by French, discharged them from liability to the mortgagee.

In Trimble v. Strother, 25 Ohio St. 378, it was held a good defense to an action to recover a debt, which defendant had agreed with a third party to pay to plaintiff, to show that before the plaintiff had assented to, or acted on the promise made in his favor, the agreement had been rescinded. To the same effect is Crowell v. Hospital of Saint Barnabas, 27 N. J. Eq. 650.

In the case at bar, the answer alleges that after plaintiffs in error had accepted their deed from French, containing the agreement to pay, he, for a valuable consideration, released and discharged them therefrom. Giving this answer a liberal interpretation instead of a technical one, we think it a sufficient plea of a release, and, therefore, the demurrer of the plaintiff below should have been overruled. No such release after the rights of the mortgage had become fixed, would operate as a discharge. The contract for the benefit of the mortgagee was one which ho could avail himself of or not, at his election, but until he had done some act which fixed his right, it was competent for the parties thereto, in good faith, and for a valuable consideration^ to rescind or cancel it.

Judgment reversed a/nd the cause is remanded.  