
    
      DURNFORD vs. JACKSON & AL.
    
    The vendee of real property, though liable to an action of mortgage, is personally liable on his promise.
    Appeal from the court of the first district.
   Mathews J,

delivered the opinion of the court. This suit was brought on a mortgage, which was transferred by the mortgagee to the plaintiff. The mortgagor having failed, his syndics sold the mortgaged property to the defendant Jackson : they themselves, have also, become defendants to the present suit. Judgment ; was given for the plaintiff, in the court below, from which all the defendants appealed.

East’n District.

May, 1820.

In the sale to Jackson, he stipulates to pay the price to Durnford, and another person mentioned in the act of sale, or to the sellers, as might be decreed in a suit then pending before the city court. No judgment was ever rendered in said suit. The present action is prosecuted to recover 5000 dollars, a part of a larger sum, secured by said mortgage. The appellee, being subrogated to the rights of the mortgagee, has a lien or right of preference over other creditors of the insolvent on the mortgaged premises, and could pursue the property in the hands of a third possessor ; as regulated by our laws. But, as the purchaser has stipulated to pay him the price, he is also personally liable according to the terms of his contract. It is true, they are conditional, and the contingency, on which he was to pay to the plaintiff, has not yet happened, viz. a decree of the late city court to that effect. This circumstance might have caused difficulty, in deciding on the rights of the present parties, was it not, that they are all now fairly before the court in this suit ; and we are of opinion, that the district court has correctly decided their case. The mortgage refers to notes of hand, and those given in evidence on the trial (it is insisted by the counsel for the appellants) are not shewn to be these referred to. It is believed, in opposition to this exception, that the answer of Mitchel, in the former suit before the city court, which it is agreed shall be evidence in the present case, proves the identity of the notes beyond a doubt.

Hennen for the plaintiff, Livermore for the defendants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  