The instructions which were given to the jury recognize in their whole tenor the rules of law applicable to the facts in this case. And the report does not reserve to the defendant the right to except to the phraseology of each sentence in the instructions given to the jury, but only the question whether there was error in the rulings on evidence which were excepted to, or in the refusals to instruct the jury as requested by the defendant. [A question of evidence omitted.]

Judgment on the verdict.

HARRIS V. Woodruff

(124 Mass. 205.)

Contract-services in training race-horse.

A lien may be maintained for the expense and skill bestowed in training horse for illegally running races for bets and wagers.

R

EPLEVIN of a mare.

The defendant claimed to have a lien

upon the mare by reason of her having been placed by her owner in his hands to be kept, trained and improved for running races for bets and wagers in Massachusetts, and she was so used while in the defendant's possession. The judge ruled that the defendant had no lien, and found for the plaintiff. The defendant excepted.

S. J. Thomas, for defendant.

D. F. Crane, for plaintiff.

GRAY, C. J. Upon the facts found by the judge below, the defendant had a lien upon the mare in his possession, for the expense and skill bestowed in improving and training her so as to be in condition to run at races. Bevan v. Waters, 3 Car. & P. 520; s. c., Mood. & Malk. 235; Scarfe v. Morgan, 1 M. & W. 270, 283; Forth v. Simpson, 13 Q. B. 680; 2 Kent's Coru. 634, 635. It may well be doubted whether the fact, that the mare was, as the defendant knew, to be illegally used to run for bets and wagers, and was so used while in the defendant's possession, made the con

Fiske v. Tolman.

tract for training her illegal; and it is quite clear that, even if the parties were in pari delicto, potior est conditio possidentis, and the law will not assist the plaintiff to obtain possession of the mare, without paying the defendant for his service under the executed contract, by which the general owner had voluntarily transferred to the defendant a special property in the mare. Scarfe v. Morgan, 4 M. & W. 281, 282; King v. Green, 6 Allen, 139 Cranson v. Goss, 107 Mass. 439, 441; 9 Am. Rep. 45.

Exceptions sustained.

FISKE V. TOLMAN.

(124 Mass. 254.)

Conveyance of land subject to a mortgage — liability of grantee.

A grantee accepted a deed conditioned to be subjected to a specified mortgage," which is part of the above-named consideration." Held, that this did not imply a promise on his part to pay it. (See note, p. 660.)

CON

ONTRACT for breach of an agreement to pay a mortgage upon land conveyed by the plaintiff to the defendant. The deed, after stating the consideration, contained the following: "Subject, however, to a mortgage held by the Lowell Five Cent Savings Bank, of $7,000, which is part of the above named consideration." The defendant had judgment, and the plaintiff excepted.

R. M. Morse, Jr., for plaintiff.

R. D. Smith (H. H. Sprague with him), for defendant.

ENDICOTT, J. It is settled in this Commonwealth, that, where land is conveyed in terms subject to a mortgage, the grantee does not undertake, or become bound by the mere acceptance of the deed, to pay the mortgage debt. In the absence of other evidence, the deed shows that he merely purchased the equity of redemption. Strong v. Converse, 8 Allen, 557; Drury v. Tremont Improvement Co., 13 Allen, 168. He is indeed interested in its payment, because it is an incumbrance on the land of which he is the owner; but he has entered into no obligation, express or implied, to pay it,

Fiske v. Tolman.

and if he parts with his title he no longer has any interest in its payment.

But if a grantee takes a deed, containing a stipulation that the land is subject to a mortgage which the grantee assumes or agrees to pay, a duty is imposed on him by the acceptance, and the law implies a promise to perform it, on which promise, in case of failure, assumpsit will lie. Pike v. Brown, 7 Cush. 133; Braman v. Dowse, 12 id. 227; Jewett v. Draper, 6 Allen, 434; Furnas v. Durgin, 119 Mass. 500; 20 Am. Rep. 341.

In the case at bar, there is no such stipulation in the deed. The nominal consideration is $11,000, and the conveyance is made Subject, however, to a mortgage.... of $7,000, which is part of the above-named consideration." A promise to pay the mortgage debt cannot be inferred from the acceptance of the deed, on the ground that the clause contains this reference to the consideration. Taken by themselves, the words do not necessarily imply any obligation to be performed by the grantee. They are to be considered rather as additional words of recital or description, showing that the whole amount of the consideration was not paid or intended to be paid, but that the grantee had purchased only an equity of redemption. And this is confirmed by the statement in the bill of exceptions, that the value of the equity in this land, as estimated by the parties, when exchanged for other land, was $4,500 only. This sum represented the amount paid by the grantee. See Trotter v. Hughes, 2 Kern. 74; Belmont v. Coman, 22 N. Y. 438.

Exceptions overruled.

NOTE BY THE REPORTER.-The doctrine of the principal case was held in Hamill ▼. G4lespie, 48 N. Y. 556. It was there held that an announcement made upon an auction sale of personal property, that it is sold subject to a chattel mortgage, and that the purchaser will have to comply with the conditions thereof, does not impose a personal obligation upon a purchaser who hears and assents to the announcement, and an action cannot be maintained against him to recover the amount secured by the mortgage. The court said: "If a deed of real estate be accepted, containing a declaration that the premises are conveyed subject to a mortgage which the purchaser assumes to pay as a part of the purchase-price, it has been held that the purchaser becomes thereby bound, not only to the vendor, but-to the mortgagee, for the payment of the mortgage debt. But the mere fact of the conveyance of land, subject to an outstanding mortgage, creates no liability on the part of the purchaser to pay the mortgage." See, also, Trotter v. Hughes, 12 N. Y. 74.

In Heid v. Vreeland, Feb. 14, 1879, 2 N. J. Law J. 89, the Vice-Chancellor of New Jersey held that "where the purchaser of land incumbered by a mortgage agrees to pay a particular sum as purchase-money, and on the execution of the contract the amount of the mortgage is deducted from the consideration and the land conveyed subject to the mortgage, the purchaser is bound to pay the mortgage debt, whether he agreed to do so by express words or not." These are the words of the official syllabus prepared by the court, and may be taken as expressing precisely the doctrine of the case. The N. J. Law J.

Fiske v. Tolman.

commenting on this decision, said: “The result of the case, however, was such as to show tne doctrine will be confined to cases which comply exactly with the conditions there expressed. It was held that the words free of all incumbrances except mortgage for $2.000 part of purchase-money,' were not sufficient to overcome the force of the receipt in full at the beginning of the deed, and the decree for the deficiency was refused. We venture to suggest that the doctrine of this case must be confined to cases in which the amount of the mortgage is really a part of the purchase-money agreed on, and is actually retained and set apart for the purpose of paying the mortgage. It is now definitely settled that the liability of the purchaser to the holder of the mortgage arises wholly out of his liability to the mortgagor and if he is bound in equity to him to pay the mortgage, then he might as well be compelled to pay it to the mortgagee; and it is very clear that if two people really agree, upon the sale of a piece of land, that the amount to be paid includes the mortgage and the buyer holds back that much of the price as a fund to meet the mortgage, he ought to use that money for that purpose and could be compelled to do so; but as a matter of fact this is not the meaning of a purchase of land subject to a mortgage when there is no express agreement to pay it. The real meaning of the transaction is that the equity of redemption is sold. The purchaser takes the burden of the mortgage so far as the land will go, but no further. The land becomes the primary fund. Jumel v. Jumel, 7 Paige, 591. The equity is all the seller has to sell; both parties suppose that the land will satisfy the mortgage, and it is not to be lightly presumed that the buyer means to take the burden of the bond upon himself. The consideration named in the deed is not conclusive as to what the real consideration was; it is natural enough to add the amount of the mortgage to the value of the equity in stating the consideration, without reflecting upon the consequences of a literal construction of that act, and the force of this circumstance is always balanced by the receipt in full which the deed contains. We think it will be found that the New York cases, in which it is held that one who buys subject to a mortgage without assuming it, is not liable for any deficiency, have expressed the real intention of the parties in most transactions of that kind. See Murray v. Smith, 1 Duer. 412; Stebbins v. Hall, 29 Barb. 524."

A group of very recent Pennsylvania cases hold the doctrine of the principal case. Moore's Appeal, Pennsylvania Supreme Court, March 3, 1879; 19 Alb. Law Jour. 257: The clause in a deed of conveyance "under and subject” to a mortgage, or other incumbrance. is a covenant of indemnity only as between grantor and grantee, for the protection of the former, unless there be an express agreement to pay the incumbrance, or an agreement may be implied from the circumstances. SHARSWOOD, J., says: "An examination of the cases which have been decided on the legal effect of such a clause in a conveyance shows, we think, that unless there exist special circumstances to raise a covenant to pay the incumbrance, it amounts only to an indemnity to the vendor. In the language of the opinion, the vendee makes the debt his own, as between him and the vendor, for his protection We have no cases,' says Mr. Justice STRONG, in Burke v. Gummey, 13 Wright, 518, that are not reconcilable with the doctrine that one who purchases expressly subject to an incumbrance as between the vendor and himself, makes the debt his own, and assumes to protect the vendor. Blank v German, 5 W. & S. 23, 36; Walker v. Physick, 5 Barr. 193; Keim v Robeson, 11 Harris, 456; Academy v. Smith, 4 P. F. Smith, 130; Taylor v. Preston, 29 id. 435 Wherever it has been construed as a covenant to pay the incumbrance, which can enure to the use of the incumbrancer, and on which he can sue either in his own name or that of the vendor, there has been an agreement to pay, either express or implied, from the circumstances Such an implication arises in most cases where there is a sale by a vendor under articles subject to the payment of the unpaid purchase-money.

ན

Why should a covenant be expressed from these words from the vendee to the vendor, to do more than protect the latter from loss? If there is no existing personal liability in the vendor by reason of his bond or promise under which he can be compelled to pay if the mortgaged premises prove insufficient, what reason is there that he should exact a covenant from his vendee for the benefit of a stranger? If such personal liability does exist, why should he exact any thing more than indemnity? Surely, then, something should appear to create the inference of such a covenant. The words 'under and subject ' import no such thing. They import that the vendee takes the land incumbered, and, at most, that on taking it at an agreed consideration, which includes the incumbrances, he will indem

Fiske v. Tolman.

nify the vendor to the extent of that consideration, in the same manner as if it had been paid in cash and so applied at the time. It is unwise to give an arbitrary, artificial meaning to words commonly used in contracts and conveyances, and thus entrap parties into engagements into which they had no reason to suppose, in the common use of language, they were entering."

Thomas v. Witbank, in the same court of the same date: In an action by a remote assignee of the grantor of land “under and subject to the payment" of a mortgage debt, held, that in the absence of an express or necessarily implied agreement, a grantor "under and subject" enters into no covenant of indemnity with any one save his immediate grantor. Samuel v. Peyton, in the same court of the same date: If the first grantee from the party creating an incumbrance is not liable personally on the implied assumpsit raised by the words" under and subject to the payment of a certain mortgage debt" contained in the habendum of a deed, no subsequent grantee can be held liable without his own express agreement.

In Insurance Company v. Addicks, decided by the Philadelphia Common Pleas, January 5, 1878, it was held that a vendee of premises "under and subject " to a mortgage, is not personally bound for the mortgage debt if it was agreed at the time of purchase, that he should not be so liable. Since Moore's Appeal, supra, this decision would be unnecessary, for the vendee would not be liable under that clause, even if it had not been expressly understood and agreed that he should not be liable. Some difficulty would arise were it not for that decision, we should suppose, in proving such a parol agreement to vary the deed. The court, however, said: "Is it not then clear from all the authorities that a vendee of premises, subject to a mortgage already on the land, is not bound personally for the mortgaged debt if it be agreed at the time of purchase that he shall not be so liable? Such having been the agreement in the case before us, according to the defendant's allegation, surely it was proper to receive the evidence offered to sustain the allegation. The paper to reform the deed was evidence to the same point, and was hence properly admitted. This evidence being uncontradicted, conclusively rebutted the supposed assumption of the mortgage debt in the deed; the court could not do otherwise than direct a verdict for the defendant. That such evidence may be admitted to correct a mistake, and show the true nature of the transaction, though it even contradict the deed, it is now too late to question: Lippincott v. Whitman, 2 Norris, 244; Greenewalt v. Kohne, 4 Weekly Notes of Cases, 497." In Crawford v. Edwards, 33 Mich. 354, it was held that where a grantee accepts a deed conveying lands subject to a mortgage, and providing that he shall assume and pay the mortgage, the mortgagee may treat both the mortgagor and his grantee as principal debtors, and may have a personal decree against either or both, upon the principle that the creditor is entitled to the benefit of all collateral obligations for the payment of the debt. Citing Corbett v. Waterman, 11 Iowa, 86; Curtis v. Tyler, 9 Pai. 435; Hoff's Appeal, Penn. St. 205.

A promise by the grantee to the grantor to pay a mortgage debt, as part of the purchase-money of the land conveyed, does not render the grantee surety for the grantor, but as between the parties the grantee is the principal debtor, and the grantor the surety. Huyler v. Atwood, 26 N. J. Eq. 504.

If the grantee, having assumed to pay a mortgage as part of the purchase-price, as it shall fall due, fails to do so, and the mortgagor pays the interest falling due, the latter may maintain assumpsit against the grantee therefor. Pike v. Brown, 7 Cush. 133. But on a promise made to the vendor by the purchaser of an equity of redemption to assume and cancel the mortgage, no action lies by the mortgagee. Mellen v. Whipple, 1 Gray, 317

The assumption by a grantee of a portion of certain mortgage debts as part of the consideration, makes the amount so assumed the personal debt of the grantee, but not the residue, and a general payment by him on the mortgage debts must be first applied to the portion so assumed. Suyder v. Robinson, 35 Ind. 311.

Where a vendee of land has assumed to pay a mortgage thereon as part of the consideration, and afterward sells the premises to another with the like provision, the mortga gor is entitled to the benefit of the undertaking of the second grantee, in the same manner as if it had been contained in a deed directly from him to such second grantee. Torrey v. Bank of Orleans, 9 Pai. 649.