Fiske v. Tolman.

The purchaser of a mere equity of redemption purchases a right, and does not assume an obligation to redeem, and may at his pleasure give up the mortgaged premises in satisfaction of the incumbrance. He is liable to the extent of the value of the premises and not beyond it. But if by the terms of the sale the mortgage-money is to be taken as a part of the consideration, equity raises upon the conscience of the purchaser an obligation to indemnify the mortgagor against the mortgage debt; and if the debt be afterward paid by the mortgagor, equity will compel the purchaser to refund the money so paid. Here the language was, the said lots are conveyed subject to the payment of a certain mortgage," etc., "which said mortgage, or the amount thereof, is computed as so much of the consideration," etc. Tichenor v. Dodd, 4 N. J. Eq. 454.

In an action of foreclosure, which under the Missouri statutes is a proceeding at law, it was held, where a grantee had purchased premises by a conveyance reciting that part of the consideration was the payment of a mortgage on the premises, that the grantee was liable for a deficiency. The court said: "The equitable doctrine of subrogation can have no application for the reason that the petition is not in the nature of a bill in equity," etc. Mason v. Barnard, 36 Mo. 384.

It was held by the New York Supreme Court, Second Department, in Meyer v. Lathrop, 10 Hun, 66, that although when a grantee of property assumes the payment of a mortgage then existing thereon, he becomes, in equity, as between himself and the grantor, the principal debtor, and the grantor is regarded as a surety; yet the rights of the mortgagee are not affected thereby, and as to him the mortgagor still continues to be the principal debtor, and the liability of the latter to him is not affected by an extension of the time of payment of the mortgage given to the grantee. This case was affirmed by the Court of Appeals, 73 N. Y. 315.

But in Calvo v. Davies, 8 Hun, 222, in the New York Supreme Court, First Department, it was held, where the grantee had assumed the payment of a mortgage put on the premises by his grantor, and the holder of the mortgage agreed with the grantee to extend the time of payment of the mortgage, with the express understanding that it should remain in every other respect unaffected by the agreement; that the mortgagor was discharged from any liability for deficiency. Affirmed by the Court of Appeals, 73 N. Y. 215.

These two Supreme Court decisions being in flat conflict, the affirmance of both in the appellate court would seem singular, but is accounted for by the fact that in the former the affirmance is put on a ground entirely distinct and apart from the question under consideration, and this question was not referred to. But in the latter case the court explicitly hold that "the rights of the parties in this case are to be determined by the rules governing the relation of principal and surety." Citing Flower v. Lance, 59 N. Y. 603. The decision in Calvo v. Davies must therefore be held to overrule Meyer v. Lathrop on the point under our consideration.

The case of Laurence v. Fox, 20 N. Y. 268, has made some disturbance on this question. The plaintiff in that case proved that one Holly made a loan of money to the defendant, stating that he was indebted to the plaintiff, and directing Holly to pay to the plaintiff on the next day the sum loaned, and this action was brought to recover the money. Judge GRAY says, "if a promise is made to one for the benefit of another, he for whose benefit it is made may bring an action for its breach." While the result of Judge GRAY's opinion I was concurred in by a majority of the court, only three of his seven associates concurred in the remark quoted above, two others concurring in the result on the ground that the promise must be regarded as made through the medium of his agent, whose action he could ratify. Two judges dissented.

From an elaborate article in the Albany Law Journal, vol. 13, page 362, we extract the following on the subject of "Actions on Promises made for the Benefit of a Third Person:" "Chancellor WALWORTH Was of opinion that provisions in conveyances of real estate whereby the grantee assumes the payment of an existing mortgage on the property, are not promises for the benefit of a third person; but rather agreements to exonerate the grantor from liability on account of the mortgage. If there was no liability on the part of the grantor to pay the mortgage, a covenant by the grantee to satisfy it could not, the chancellor held, be enforced by the holder of the mortgage against the grantee. King v. Whitely, 10 Paige, 465. This view was approved by the Court of Appeals in Trotter v.

Fiske v. Tolman.

Hughes, 2 Kern. 74, and the same view is taken in Ford v. David. 1 Bosw see p. 600, and in Doolittle v. Naylor, 2 Bosw. see p. 225.

But in Burr v. Beers, 24 N. Y. 178, a very different view is taken of agreements of this nature. This was an action by a holder of a mortgage on real estate against a grantee of the mortgagor whose conveyance contained the following covenant: Subject to two mortgages held by, and bearing date, etc., which mortgages are deemed and taken as a part of the consideration of this conveyance, and which the party of the second part hereby assumes to pay.' As no foreclosure of the mortgage was sought, and as the mortgagor was not a party to the action, Judge DENIO, in delivering the opinion of the court, remarks that if the judgment (for the plaintiff) can be supported. it must be 'upon the broad principle that if one person makes a promise to another for the benefit of a third person, that third person may maintain an action on the promise;' and judgment in the plaintiff's favor was affirmed. Thus, the assuming of the payment of mortgages by grantees of mortgaged real estate is declared to be a contract of the same class as that in evidence in Lawrence v. Fox. The decision in Burr v. Beers was unanimous. In Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82, the doctrine announced in the two last cases referred to is said to be one which was established not without a struggle, that judges have yielded assent to it with reluctance, and that in general there has been some trust, or the defendant has been charged as for money which ex æquo et bono, belonged to the plaintiff. The doctrine will not be extended to new or doubtful cases.'

Garnsey v. Rogers, 47 N. Y. 233, was an action brought for the foreclosure of a mortgage. The enforcement was sought of a covenant in an instrument which was in fact a mortgage, although on its face an absolute deed to pay the mortgage under foreclosure. The court held that a covenant contained in a subsequent to pay a prior mortgage could not be enforced by the holder of the latter security. RAPALLO, J., in delivering the opinion of the court, remarks of Lawrence v. For, that he does not understand the case to have gone so far as to hold that every promise made by one person to another from the performance of which a third would derive a benefit, gives a right of action to such third person, 'he being privy neither to the contract nor the consideration.' He must,' continues the judge, be the party intended to be benefited; and all that the case of Lawrence v. For decides is that where one person loans money to another upon his promise to pay it to a third party to whom the party so lending the money is indebted, the contract thus made by the lender is made for the benefit of his creditor, and the latter can maintain an action upon it without proving an express promise to himself from the party receiving the money. The decision in Burr v. Beers may be sustained' it is said, ** as a special agreement leaving so much money in the hands of the purchaser for the use of the mortgagee.' This is a theory somewhat more limited in its extent than the 'broad principle' on which the court in the latter case placed their decision.

The tendency of the opinion in Garnsey v. Rogers appears to be that in actions of the character of those under consideration, the plaintiff must have some claim based on privity of contract or of consideration to authorize an action by him against the person making the promise, that the mere circumstance that the performance of the promise would be beneficial to him is not sufficient ground on which to maintain action; but that the rule in this State is so far different from the English rule that no communication between the plaintiff and the defendant is required to be shown. The remark concerning the decision in 24 N. Y. seems to cast a doubt on the correctness of the theory that a covenant in a conveyance of land to pay a mortgage thereon is a contract made for the benefit of a third party. On account of the remark made on the case we have given the words of the cove nant in evidence in Burr v. Beers. Where the plaintiff occupies the position of a cestui que trust his rights will of course be recognized by the court. Per ALLEN, J., 46 N. Y. 92. But the language of the Commission of Appeals in another case is somewhat in contrast with the careful distinctions and guarded language of the Court of Appeals Thorp v. Keokuk Coal Co., 48 N. Y. 253, was an action brought on a covenant in a deed. Here it appeared that in a bond accompanying a mortgage a clause had been inserted that recourse should first be had to the mortgaged property, and that the obligors should only be liable in the event of a deficiency remaining on a sale thereof The mortgagors conveyed to the defendants by a deed in which payment of the mortgage was assumed. On the covenant thus made the action was brought for the amount due on the mortgage. The Commission

Fiske v. Tolman.

of Appeals held that the action could be maintained, and that the clause referred to in the bond did not lessen the defendants' liability; and EARL, C., adds that the defendants' liability would have been equally great if the mortgagor had not been liable at all, the ⚫defendants having promised upon a sufficient consideration to pay the debt.'

The natural deduction from the opinion of the court in this case is that every promise made on sufficient consideration to do an act beneficial to a third party will sustain an action by such third party, whether he be a creditor of the person to whom the promise is made or not, or have, or have not any interest in the matter other than that arising from the promise. If this view be correct, the remarks of the Court of Appeals in Garnsey v. Rogers, in reference to the cases in 20 and 24 N. Y., are at least inappropriate, since the Commission of Appeals thus assert to be law, all that could be implied from the most liberal interpretation of those cases. It may, we apprehend, be said that the present tendency of the decisions in this State is against the extreme doctrine laid down in Thorp v. Keokuk Coal Co."

From an article in 15 Albany Law Journal, p. 278, by Edward Q. Keasby, Esq., editor of the New Jersey Law Journal, referring to the article from which we have quoted, we extract the following:

"Crowell v. Currier, 12 C. E. Green, 152; Crowell v. Hospital of St. Barnabas, id. 650. Currier conveyed certain mortgaged premises to the hospital of St. Barnabas, subject to a mortgage which was assumed by the hospital. The hospital afterward reconveyed to Currier, subject to the mortgage, which he in turn assumed to pay. An assignee of the mortgage, who obtained it before the reconveyance, afterward filed a bill to foreclose, and prayed for a decree for the deficiency against the hospital. The decree was refused. The decisions in both courts were substantially upon the same grounds. It was held that a stipulation in a deed of conveyance, inter partes, that the grantee shall assume and pay a mortgage on the premises is a contract with the grantor simply for his indemnity and not a contract with the mortgagee. That the right of the mortgagee to a decree for the deficiency against a purchaser who has assumed the mortgage does not arise from any vested right in the mortgagee by virtue of the stipulation of the grantee with the grantor. It rests merely on the doctrine of the courts of equity that a creditor is entitled to any security remaining in the hands of one who stands in the position of a surety for the debt, and that he may proceed directly against the person ultimately liable in order to avoid circuity of action, and that the liability of the purchaser to the grantor having been extinguished by the reconveyance the purchaser does not remain liable to the mortgagee. The contract of indemnity having been rescinded (without fraud) by the parties to it, the mortgagee is not entitled to a decree for the deficiency, founded upon such a stipulation in the deed. It will be seen that this case places the liability of the purchaser upon the ground upon which it was placed by Chancellor WALWORTH, in Kingv. Whitely, and by all the earlier cases, that it is opposed to the idea of a contract made with one person conferring an absolute right of action upon a third person, and also that it extends the principle of the case of Garnsey v. Rogers beyond the limit which was set to it by the judge who delivered the opinion. In this case it was held that if a mortgage is assumed in a deed which was given only as security for a debt, and with the expectation of a reconveyance, the person who assumed the mortgage did not remain liable after he had reconveyed the property, but the court was careful to distinguish this case from a case in which the conveyance was absolute. This, however, was doubtless done in deference to the decisions in the case of Burr v. Beers, 24 N. Y. 178, and it can hardly be doubted that if a case similar to this in New Jersey should now come before the courts of New York it would be decided in the same way. This prediction, however, has not been fulfilled, for in two recent cases in the New York Court of Appeals, the doctrine of the criticised case of Thorp v. Keokuk Coal Co. is recognized and approved.

In Campbell v. Smith, 71 N. Y. 26, Maria C. and John M Hood executed and delivered to one Burtis a deed of real estate in which the grantee's name was not inserted, a blank being left for its insertion. The defendant afterward received this deed (his name having been inserted by Burtis), under an agreement with the latter, that the defendant should apply the profits on an indebtedness from Burtis to a firm of which the defendant was & member. The defendant subsequently, at the request of Burtis, conveyed the property to a third person, the deed containing a clause by which the "party of the second part." agreed to assume a certain mortgage on the property. This mortgage was afterward VOL. XXVI-84

Fiske v. Tolman.

foreclosed, the defendant not being made a party to the foreclosure, the plaintiff in the foreclosure bought the property on the foreclosure sale, and a deficiency remaining due to him, brought this action to recover its amount. Held, that the action was maintainable, affirming the decision of the Supreme Court in 8 Hun, 6. The court distinguish Garney ▼, Rodgers as follows: "In that case a debtor conveyed to his creditor certain premises by deed as security for his debt, and it was held that an agreement in the deed that the creditor would pay a prior incumbrance was for the benefit and protection of the debtor, and did not enure to the benefit of the holder of the incumbrance, within Lawrence v. Fư 9 N. Y. 268), and kindred cases; and that upon the payment of the debt and a re-convey. ance of the premises to the debtor, with the assumption upon the part of the latter of the incumbrance, the creditor was released from all obligation upon his covenant in the deed. Here no such relation existed between Hood, the grantor, and the defendant. The former conveyed absolutely all her interest in the premises, and the defendant, by consenting to the insertion of his name as grantee, and accepting the conveyance, occupied the position of purchaser. As between them the relation of grantor and grantee existed, with all the rights and obligations incident to that position. The covenant to pay the mortgage was absolute, and the mortgagee had the right to enforce it. The principle that when A, for a valuable consideration, agrees with B to pay his debt to C, the latter can enforce the contract against A, has been repeatedly adjudicated, and is applicable to the transaction developed in this case.' Citing Lawrence v. For, 20 N. Y. 268; Burr v. Beers, 24 id. 178; Ricard v. Sanderson, 41 id. 179; Thorp v. Keokuk Coal Co., 48 id. 253. The second and third cases, as well as the last, are exactly in point, being cases of the assumption of a mortgage by the subsequent grantee of the premises.

In Vrooman v. Turner, 69 N. Y. 280; 25 Am. Rep. 195, it was held, reversing the decision of the Supreme Court in 8 Hun, 78, that where the defendant took a deed of lands, assum. ing, as part of the consideration, the payment of a mortgage to which they were subject. her title having been derived through several mesne conveyances, in none of which the grantee assumed payment of the mortgage, she was not liable for a deficiency on foreclosure sale. This holding is based upon King v. Whitely, 10 Pai. 465, and Trotter v. Hughes, 12 N. Y. 74, and distinguishes Lawrence v. Fox, 20 N. Y. 268. Of the latter case the court say: "The courts are not inclined to extend the doctrine of Laurence v. For to cases not clearly within the principle of that decision. Judges have differed as to the principle upon which Lawrence v. Fox and kindred cases rest, but in every case in which an action has been sustained there has been a debt or duty owing by the promisee to the party claiming to sue upon the promise." "In Lawrence v. For a prominent question was made in limine, whether the debt from Halley to the plaintiff was sufficiently proved by the confession of Halley made at the time of the loan of money to the defendant. It was assumed that if there was no debt proved, the action would not lie, and the declara tion of Halley, the debtor, was held sufficient evidence of the debt." “It is claimed that King v. Whitely and the cases following it were overruled by Lawrence v. For. But it is very clear that it was not the intention to overrule them, and that the cases are not inconsistent. The doctrine of Lawrence v. Fox, although questioned and criticised, was not first adopted in this State by the decision of that case. It was expressly adjudged as early as 1825, in Farley v. Cleveland, 4 Cow. 432, affirmed in the Court for the Correction of Errors in 1827, per totam curiam, and reported in 9 Cow. 639. The chancellor was not ignorant of those decisions when he decided King v. Whitely, nor were Judge DENIO and his associates unaware of them when Trotter v. Hughes was decided, and Judge GRAY in Lawrence v. Fu says that Farley v. Cleveland had never been doubted." The court also say, on the merits: "It is true that there need be no privity between the promisor and the party claiming the benefit of the undertaking, neither is it necessary that the latter should be privy to the consideration of the promise, but it does not follow that a mere volunteer can avail himself of it. A legal obligation or duty of the promisee to him will so connect him with the trans action as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor. A mere stranger cannot intervene, and claim by action the benefit of a contract between other parties 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." Where the owner of land conveys the same "subject to" a mortgage executed by him

Cooper v. McKenna.

thereon, given to secure his bond, the land in equity becomes the primary fund for the pay. ment of the debt, and upon payment of the bond the obligor is entitled to be subrogated to the rights of the obligee, so that he can re-imburse himself by recourse to the mortgaged premises, and he may require an assignment of the bond and mortgage to an assignee of his nomination for his benefit; Johnson v. Zink, 51 N. Y. 333. The court say: "The conveyance by the mortgagor of the mortgaged premises subject to' the mortgage in question, to Comstock, conveyed to him the equity of redemption only, and consequently the mortgage was to be discharged and satisfied out of those premises, before any right or interest therein was acquired by the grantee, and as between those parties it is clearly equitable that such discharge and satisfaction should be made out of the said premises, and that the obligor and mortgagor should not, in exoneration thereof, personally be called upon to pay the same out of his individual property. The effect of the transaction was in equity to make the land the primary fund for the payment of the debt, and to place the plaintiff in the situation or relation of surety therefor only."

The doctrine that a grantee, by accepting a conveyance of land, by its terms subject to a mortgage, and conditioned that he shall assume and agree to pay it as part of the consideration and deducted therefrom, is bound to indemnify the grantor against his liability for the mortgage debt, is reiterated in the very recent case of Comstock v. Drohan, 71 N. Y. 9

COOPER V. MCKENNA.

(124 Mass. 284.)

Assault and battery-by priest in administering a sacrament.

A Roman Catholic priest has no legal authority by virtue of his priestly character, or the offices of his religion, while endeavoring to administer a rite of his church to a sick person at his request, forcibly to eject any person who is lawfully present in the room.

Товтра

ORT for assault and battery. The defendant, a Roman Catholic priest, endeavoring to administer the sacrament of penance to a sick inmate of an alms-house, at her request; the keeper's wife, who was in temporary charge, was present, and having refused to leave the room after being requested to do so by the defendant, he endeavored forcibly to eject her; the administration of the rite required absolute secrecy, the defendant and the sick person; a proper amount of force was used.

The defendant requested the judge to instruct the jury as follows: "If the jury are satisfied that the defendant went to the alms-house, at Hogan's request, to administer to her the sacraments of her church, and violated no rule of the house, either written or otherwise, and did not interfere with the proper discipline of the house in obtaining access to her, then, if the sacrament of penance, to be administered as understood by defendant and