
    Stockton v. Gould, Appellant.
    
      Meal estate—Written contract for exchange—When not merged in subsequent deed—Assumption of mortgage.
    
    A written contract for the exchange of real estate by which each party expressly assumes the mortgage on the property to be conveyed to Mm, is not merged in deeds subsequently executed for the premises in question containing no express assumption of the mortgages.
    Argued April 7, 1892.
    Appeal, No. 280, Jan T., 1892, by defendant, John H. Gould, from judgment of C. P. No. 4, Phila Co., Dec. T., 1890, No. 724, on verdict for plaintiff, William E. Stockton.
    Before Pans on, O. J., Stbrrett, Williams, -McCollum and Heydrick, JJ.
    Assumpsit for damages for breach of written contract.
    The evidence, on the trial before Thayer, P. J., was to the following effect: Plaintiff and defendant, by a written agreement under date of Sept. 11, 1888, agreed to an exchange of real estate; defendant agreeing to convey to Stockton a property “ subject to a mortgage debt of $8,500, which the said Stockton his heirs and assigns assumes and agrees to pay; ” and plaintiff agreeing to convey to defendant a property “ subject to the mortgage debt of $6,800, which the said John H. Gould assumes for himself his heirs and assigns and agrees to pay.” A deed was subsequently executed by each of the parties to the son of the other, the deed to defendant’s son containing the following clause: “ Under and subject to the payment of a certain mortgage debt or principal sum of $6,300, with the interest hereafter to accrue and grow due thereon, secured on the above described premises by indenture of mortgage given and executed by the said William H. Stockton,” etc. The property conveyed by plaintiff to defendant’s son was sold at sheriff’s sale under proceedings instituted on the mortgage; the deficit on the mortgage debt the plaintiff was obliged to pay; and this suit was brought by him to recover that amount. The mortgage on the property conveyed by defendant to plaintiff’s son was paid by a subsequent vendee. No evidence was offered by defendant. His points, refused, were :
    “ 1. The contract of September 11,1888, whereby defendant Gould agreed to purchase certain property and assumed, for his assigns, as well as for himself and his heirs, the payment of a certain mortgage debt thereon, was, as to said provision, merged in the subsequent conveyance of September 26, 1888, by plaintiff to James G. Gould, containing another and different provision on the same subject.” [1]
    “ 2. Premises No. 118 North Thirty-second street having been conveyed by plaintiff to James G. Gould, and having subsequently been sold and conveyed by the sheriff of Philadelphia county to a third person, there can,now be no recovery against the defendant, John H. Gould, on his agreement to pay the mortgage on said premises.” [2]
    3. The verdict should be for the defendant.” [3]
    The court instructed the jury to find a verdict for the plaintiff.
    
      JSrrors assigned were (1-3) the refusal of the defendant’s points as above, quoting them; (4) the instruction to find for plaintiff.
    
      
      J, Howard G-endell, for appellant.
    
      John Hampton Barnes, not heard, for appellee.
    April 25, 1892.
   Per Curiam,

Judgment affirmed.  