
    Wells and Another v. Merritt.
    A. having executed a mortgage upon certain real estate, afterward sold the premises to B., who agreed to pay for the same by discharging the notes and mortgage given by A.; and to secure the performance of his agreement, executed to A. a mortgage upon the same premises. Suit by A. against B., to foreclose the mortgage.
    
      Eeld, that the mortgage from B. to A., was not a mere mortgage of indemnity', upon which A. could not maintain an action until he had paid the-notes assumed to be paid by B.; hut that upon the failure of B. to pay the purchase money, in the manner stipulated, an immediate right of action accrued to A. upon the mortgage.
    
      Eell, also, that the covenant of B. in the mortgage, to pay the notes of A., was sufficient to authorize an order for execution over against him, if the mortgaged premises did not satisfy the debt.
    APPEAL from the Orange Circuit Court.
   Worden, J.

This was an action by Merritt against Wells and wife, to foreclose a mortgage executed by the defendants to the plaintiff. Judgment for the plaintiff

The facts are as follows, viz., Merritt had bought a piece of land of one Eli Allen, and had given him certain promissory noi.es for the payment of the purchase money. Merritt then sold the land to Wells, and the latter agreed, in payment therefor, to pay the several promissory notes thus given by Mr”:i to Allen, and to secure the performance of the agreement, executed to Merritt the mortgage in suit. There was a stipulation in the mortgage binding Wells to pay the several notes mentioned.

It is insisted that this was a mere contract of indemnity, and that no action will lie upon it, nor can any foreclosure be had, until Merritt shall have been damnified by being compelled to pay to Allen the notes mentioned. We are n0^ °P^“on- r-^ie sa^e of the land by Merritt to Wells, created an indebtedness from the latter to the former. This indebtedness, by the agreement of the parties, was to be discharged by the payment, by Wells, of the notes given, by Merritt to Allen. A failure by Wells to pay according to his stipulation violates the agreement, and gives Merritt an immediate cause of action. This view is fully sustained by the case of Kirk et al. v. The Fort Wayne Gaslight Co., 13 Ind. 56, from which this case can not, in principle, be distinguished.

J. & A. B. Collins, for the appellants.

There was an order for execution against Wills for any deficit, after exhausting the mortgaged premises. This is objected to, because “there was no separate undertaking to pay any thing.” The mortgage contained a covenant binding Wells to pay the several notes, and that was amply sufficient to justify the order of the Court. 2 R. S. 1852, § 634, p. 176; id. § 2, p. 239.

Per Curiam.. — The judgment is affirmed, with 5 per cent, damages and costs.  