was retained by him, thereby increasing his per- as between him and the vendor for his protecsonal estate to that extent. Lennig's Estate, 2 Sm. 135. John G. Johnson, contra, argued that the habendum of the deed only raised a liability on the part of the intestate to indemnify his vendor, and created no debt which should be paid out of the personalty to the exoneration of the heirs. tion." March 3, 1879. THE COURT. The personal Wherever it has been construed as a covenant estate of a decedent is the primary fund for the to pay the encumbrance, which can enure to the payment of his debts. One reason and perhaps use of the encumbrancer, and on which he can the controlling one for this rule is that the per-sue, either in his own name or that of the vensonal estate has been increased by means of them, dor, there has been an agreement to pay, either and his intention is, therefore, presumed to be that express or implied from the circumstances. Such it should bear the burthen unless he has expressed an implication arises in most cases where there a contrary intention by his will. If, therefore, he is a sale by a vendee under articles, subject to the has encumbered his land the heir or devisee is payment of the unpaid purchase money. Thus entitled to call upon the personalty for exonera- in Campbell v. Shrum (3 Watts, 60), Mr. Justion. Where, however, his land has been pur- tice SERGEANT says, "Here the principal conchased encumbered by the debts of a prior owner sideration for Shrum's agreement to transfer to this reason does not exist, and cessante ratione Campbell was that Campbell should discharge the cessat et ipsa lex. (Keyzey's Case, 9 S. & R. 71.) arrears due by Shrum for the land, and relieve Yet if he has made himself direc ly liable for the and exonerate him from his liability therefor." debt for which the encumbrance was created, Such was Metzgar's Appeal (21 P. F. Smith, there the exception does not apply, but the gene- 330). The conveyance was subject to a dower, ral rule prevails. (Lennig's Estate, 2 P. F. and the yearly interest to be paid to the widow Smith, 135.) It seems, however, that indemni- and payable after her decease to the heirs. fying his vendor against being called on to pay the debt, upon the land proving to be insufficient, is not an act which makes him personally liable to the creditor and thereby throws the debt upon the personalty. (Evelyn v. Evelyn, 2 P. Wms. 664, note by Cox.) A mere covenant by the purchaser of a mortgaged estate to indemnify the vendor does not make it his personal debt. (Woods v. Huntingford, 3 Ves. 131.) These cases have been recognized by this Court in Hoff's Appeal (12 Harris, 204). In Taylor v. Preston (29 P. F. Smith, 436), also a sale of land held under articles, there was evidence that the grantees were to pay $20,000, and assume all the back payments. In Hoff's Appeal (12 Harris, 200), in the receipt subjoined to the conveyance it was stated that the payment in hand and the mortgage debt and interest due and to grow due thereon "to be paid by the said John Hoff," the grantee, was the consideration for the premises. In Lennig's Estate (2 P. F. Smith, 135), the property was purchased for The decedent in his lifetime purchased a $37,000, which sum the contract stated included house and lot for $9500, and the habendum con- the two mortgages of $12,000 and $25,000. tained these words, "Under and subject, never- Woodward's Appeal (2 Wright, 322), much relied theless, to the payment of a mortgage debt of on as establishing a personal liability, only decided $8500." The receipt at the foot of the deed that where a guardian by authority from the was for "$9500, being the full consideration." The value of the property clear of the encumbrance was $18,000. The question then is, did the decedent make this mortgage debt his own, so as to entitle his heir to call upon the personal estate to exonerate the land? 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 encumbrance, it amounts only to an indemnity to the vendor. In the language of the opinions, "the vendee makes the debt his own Orphans' Court purchased land at the request and for the use of her ward, and took the conveyance under and subject to a mortgage, that Court as a court of equity would protect her from possible eventual responsibility to the vendor by ordering the mortgage to be paid out of the ward's personal estate, though the consequence was that the land descended to the heir unencumbered. It was expressly said in the opinion by Mr. Justice STRONG in that case, "It is of no importance now to inquire whether Mrs. Woodward, by taking a deed from Mr. Spackman for the Arch Street house," subject to the mortgage thereon, "assumed the debt as between the | the deficiency resulting after the sale under a grantor and herself, or whether she only engaged mortgage of certain premises to which title had to indemnify him against being called upon to been taken by the defendant. pay it. If it was either, it was a liability incurred in behalf of her ward, and a liability incurred in obedience to the directions of the Orphans' Court." Why should a covenant be inferred from these words by 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 anything 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 encumbered, and at most that so taking it, at an agreed consideration, which includes the encumbrance, he will indemnify 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. The Act of Assembly of June 12, 1878 (Pamph. L. 205), has very wisely provided that the grantee shall not be personally liable unless he shall expressly assume such liability by agreement in writing or condition in the conveyance. We think the conclusion at which the auditing Judge and the Court below arrived was right. Decree affirmed, and appeal dismissed at the costs of the appellants. Opinion by SHARSWOOD, C. J. Jan. '78, 273. Samuel v. Peyton. The declaration set out that on January 24, 1870, J. G. Pierie executed a bond for $800 in favor of J. H. Wheeler, secured by a mortgage of certain premises, which bond and mortgage after sundry assignments. became vested in the plaintiff; that after the execution of this mortgage, Pierie conveyed the premises "under and subject to the payment of the mortgage" to one Kressler, who conveyed the same "under and subject to the payment of the mortgage" to Brownfield, who conveyed the same "under and subject to the payment of the mortgage" to the defendant; that the premises were sold at sheriff's sale under the mortgage, and after crediting the net proceeds on the mortgage, there remained a balance due of $529.26, to recover which this suit was brought. The defendant pleaded specially (1), that Wheeler prior to the date of the mortgage was the owner of a large lot of ground of which the mortgaged premises formed part; that Wheeler agreed to sell to Kressler the large lot for the sum of $7500, and to advance $35,700 for the building of fifty houses on a part thereof, which sums were to be secured by fifty bonds and mortgages for the aggregate sum of $43,200, and it was agreed between Wheeler and Kressler that each of these houses should exclusively and alone be liable for the amount of the bond for the securing of which it was to be mortgaged; that in pursuance of this agreement Wheeler conveyed the large lot to Pierie, who was a man of straw and totally irresponsible, for the nominal consideration of $7500-that on the same day Pierie executed the fifty bonds and mortgages of which the mortgage in question is one, and by indenture dated four days thereafter Pierie conveyed the premises in question to Kressler for the consideration of one dollar. (2) That it was agreed between Wheeler and Kressler that Kressler and his assigns should not be personally liable for any of the sums so secured January 27, 1879. as aforesaid; that in order to carry out this agreement, and so that Kressler and his assigns should not be personally liable for any of the said debts, Wheeler and Kressler procured Pierie, who was a man of straw and without means, to take the title, and make the bonds and mortgages, and afterwards to convey the premises to Kressler, and that this agreement was executed as already set forth. sonal liability of grantee. The grantee of premises "under and subject" to a mortgage is not personally liable for the mortgage, there having been in this case an agreement between the original mortgagee and the first grantee from the mortgagor that such grantee should be free from any personal liability or the mortgage. Error to the Common Pleas No. 4, of Philadelphia County. Assumpsit, by Peyton against Samuel to recover (3) That the defendant had conveyed the premises mentioned in the declaration to one Sylvester, who had conveyed over, and that the payment of principal or interest was not in default when the defendant parted with his title. To these pleas the plaintiff demurred, and after argument the Court entered judgment for John Samuel, for the plaintiff in error. (The arguments were in substance the same as in the Court below, reported 4 WEEKLY NOTES, 405). Held (reversing the judgment of the Court below) that the under and subject clause imported no personal liability, in the absence of evidence of a clear intention that the grantee should be personally bound. and subject" prima facie import a liability on the part of the grantee to pay the mortgage, was error. Held further, that the instruction that the words "under A rule to set aside a sheriff's sale taken by a stranger to a suit, whose liability on the transaction leading thereto March 3, 1879. THE COURT. In Moore's Ap-was, however, then doubtful, was made absolute by agree peal, which has just been decided (supra), it has been held by this Court that the conveyance of land "under and subject" to a mortgage or other incumbrance is of itself a covenant of indemnity only for the protection of the vendor. It was shown in that case on a review of the authorities that it was only where there was an express agreement to pay the encumbrance, or where such agreement might be implied from the circumstances, that there was liability to the encumbrancer, or that he could sue in the name of the vendor to his use. The vendor must sue, and must show that he has been damnified, or at least must show that his danger of damnification is imminent. The special pleas in this case not only expressly denied any agreement by the defendant to pay the mortgage, but averred a state of things which showed that his vendor never could be damnified. If it was expressly agreed that the first grantee from the party creating the encumbrance should not be personally liable, it is evident that no subsequent grantee could become so without his own express agreement. The first link in the chain, by which a subsequent grantee might be called upon to indemnify his vendor would be wanting. On the demurrer to the special pleas of the defendant we think he was entitled to judgment. Judgment reversed, and now judgment for the defendant on the demurrer. Opinion by SHARSWOOD, C. J. ment in consideration of an acknowledgment of liability, and promise to pay in pursuance thereof: Held (sustaining the Court below), that the promise was not within the statute of frauds, as an oral promise to answer for the debt of another, but that there was created a new, original, and binding contract intended to subserve a purpose of the promisor. But, held further (reversing the opinion of the Court below), that an attorney-at-law has no implied authority from his client to enter into such an agreement. Error to the Common Pleas No. 2, of Philadelphia County. Assumpsit, by William W. Wiltbank, trustee, etc., against Rufus R. Thomas, to recover a balance due upon a mortgage after a sheriff's sale of the mortgaged premises. Pleas, non-assumpsit, payment with leave, etc. Upon the trial, before MITCHELL, J., the following facts appeared: that, in part payment of building materials, Thomas received in 1869 title to the mortgaged property "under and subject to the payment of the said mortgage debt of $1500;" that in 1871 Thomas conveyed the mortgaged property to Haines, and in 1872 the mortgage was assigned to the plaintiff; that in 1877 a sci. fa. sur mortgage was issued against Wilson, the mortgagor, and on judgment thereunder, the property was sold at sheriff's sale for $150; that Thomas thereupon took a rule to set the sale aside on the ground of misdescription, and, the rule being made absolute, the property was, upon second sale, bought in by him for $900, of which the plaintiff received $414. It was testified, on behalf of the plaintiff, that Thomas had Feb. 6, 1879. referred Mr. Wiltbank to his counsel, and Thomas v. Wiltbank. that upon the latter's expressly recognizing Thomas's liability on, and promise to pay the Mortgage "Under and subject clause-Per- balance due on the mortgage, the rule was made sonal liability of vendee not to be implied from absolute by agreement. For the defendant it under and subject clause, in absence of express or was testified that no agreement of any kind was implied agreement-Attorney-at-law, scope of made with relation to the rule, but that the same power to bind client by agreement-Statute of was made absolute upon technical grounds withfrauds-What is consideration for a promise. out argument contra. It was further in evidence that the conveyancer of the defendant, upon exA clause in a deed of conveyance "under and sub-amining the papers, discovered that the property ject" to a mortgage or other encumbrance 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 encumbrance, or unless such an agreement may be implied from the circumstances. Jan. '79, 133. the under and subject clause; but that no instrucwas subject to a mortgage, and, therefore, inserted tions were given as to the preparation of the deed, or the recital of the mortgage. The defendant presented, inter alia, the following points: (2) If the defendant, Thomas, was not the owner of the property at the time of default on the mortgage in question, he is not liable in this action. Declined. (1st assignment of error.) (3) If the defendant was not the owner of the property in question at the time when plaintiff acquired the mortgage, then there is no right of recovery in this action. Declined. (2d assignment of error.) (5) Unless it was clearly the intention ofe parties at the time of the conveyance to Thomas that he should be bound personally to pay this mortgage, the recital in the deed, under the circumstances, would create no liability on his part. Declined. (3d assignment of error.) (6) Unless the jury find from the evidence. that at the time of the conveyance to the defend'ant there was an agreement that he should pay the mortgage money, the plaintiff cannot recover. Declined. (4th assignment of error.) (7) Unless the jury find from the evidence that there was a clear undertaking and tion on the part of the defendant to pay the mortgage, he is not liable in this action, Declined. (5th assignment of error.) ties, at the time of the conveyance, that the clause in the deed is not to create any liability. If there was any agreement, or intention of the parties, at the time of the conveyance to.defendant, that the vendee was not to become liable for the mortgage debt, but only the property was to be liable, then the defendant would not be answerable to the plaintiff upon any liability arising from the deed itself. "The first point for you is, whether or not there is any sufficient evidence of such intention or agreement with Thomas when he took the mortgage." (9th assignment of error.) Verdict for plaintiff, and judgment thereon; whereupon the defendant took this writ, assigning for error the answers to his points, and the portion of the charge quoted in brackets. E. Cooper Shapley (with whom was Thos. J. Diehl), for the plaintiff in error. Inasmuch as this action was by Wiltbank, the assignee of the mortgage, against a former owner in the chain of title, the language of the Court was practically to the effect that where the words assump-"under and subject" appear in the deed to any present or former owner of the property, they not only render such owner liable to indemnify his vendor as against such mortgage, but make him liable for the amount of such mortgage to any holder thereof. (8) There being neither privity of estate nor privity of contract between the plaintiff and defendant, and there being no evidence that the There having been no uence of an agreedefendant expressly agreed to pay the mortgage ment on the part of Thomas to pay the mortin question, the plaintiff is not entitled to re-gage, the liability can only be founded upon the cover. Declined. (6th assignment of error.) under and subject clause; but the words stand(9) Even if the jury should find from the evi-ing alone do not import a personal liability. dence that the counsel of the defendant stated Campbell v. Shrum, 3 W. 60. that his client would assume the responsibility of the mortgage if the sheriff's sale should be set aside, such a promise was not within the scope of his authority as attorney, and the defendant is not bound by it. Refused, because there is evidence by Wiltbank that defendant referred him to Shapley about this matter. (7th assignment of error.) In Hoff's Appeal (12 H. 200), Morris v. Oakford (9 B. 498), and the many cases following them, there was an express stipulation to pay the mortgage debt. The important element of liability is that the mortgage debt should form part of the consideration paid for the property. This was the criterion in Girard Ins. Co. v. Stewart (5 WEEKLY NOTES, 87). If Thomas be liable, his liability is only to his vendor, and there being nether privity of contract nor privity of estate between plaintiff and defendant, the latter cannot maintain this action. (10) Even if the jury believe that the defendant, after the first sale by the sheriff, agreed to assume the responsibility of this mortgage, it is a promise to pay the debt of another not in writing, and under the Statute of Frauds, the plainThomas having sold and conveyed this pro tiff cannot recover. Refused, because the con-perty to another prior to the assignment of the sideration, the opportunity to buy at a second sale, moved directly to the defendant. (8th assignment of error.) The Court charged the jury, inter alia, as fol lows: "You start out, then, in this case, with the presumption that [the words in the deed, "under and subject to the payment of the mortgage," import a liability on the part of the defendant to pay]. But this prima facie presumption may be changed by evidence of the intention of the par mortgage to Wiltbank, is not liable. Academy v. Smith, 4 Sm. 130. his client by such an agreement as is alleged to Coxe v. Nicholls, 2 Yeates, 546. Tompkins v. Woodford, 1 B. 158. John G. Johnson (with whom was Albert E. Peterson), for the defendant in error. The cases cited by the plaintiff in error negativing the authority of an attorney-at law to bind his client by an agreement similar to the one under consideration, do not sustain his position. The question whether or no authority was given was properly left to the jury. The promise to pay the balance due on the mortgage was for a new consideration, and not a promise to answer for the debt of another. Maule v. Bucknell, 14 Wr. 39 The instruction of the Court was duly qualified, so that if the defendant received the property under the agreement that only the equity over and above the mortgage should pass, he was under no liability by reason of the recital. the defendant below was entitled to affirmative answers to his fifth and sixth points, and that there was error in the charge as complained of in the ninth assignment. We think there was error also in the answer to the defendant's ninth point. within the scope of the attorney's authority, and Clearly the promise to pay the mortgage was not the evidence of express authority was for the fusal of the Court to answer, as requested in the jury. There was no error, we think, in the redefendant's tenth point, that the promise of the defendant to pay the mortgage, if proved, was within the Statute of Frauds. The consideration to Thomas was the benefit to himself from setting aside the sheriff's sale, a new, original, and binding contract; his object being not to answer for the debt of the original mortgagor, but to subserve a purpose of his own. (Arnold v. Stedman, 9 Wright, 186; Landis v. Royer, 9 P. F. Smith, 95; Jefferson County v. Slagle, 16 Ibid. 202; Townsend v. Long, 27 Ibid. 143; Taylor v. Preston, 29 Ibid. 436.) The other assignments of error are not sustained. Judgment reversed, and a venire facias de novo awarded. Opinion by SHARSWOOD, C. J. The cases from Campbell v. Shrum (supra) down, all rule that the words "under and subject" prima facie import a personal liability, and the effect of those words must be nullified by agree- Jan. '79, 67. ment in order to avoid liability. Hoff's Appeal, 12 H. 200. This rule is not shaken by Girard Life Ins. Co. v. Stewart (5 WEEKLY NOTES, 87), for there the defendant was "a mere naked trustee, without any knowledge or personal interest." It is immaterial whether or not the mortgagee or his assignee can maintain an action in his own name against the grantee. In this case there was a direct engagement by Thomas to the plaintiff below, to pay him the money for which the action was brought. This has been found by the jury, and the plaintiff's discharge of Thomas would certainly not leave him open to any demand on the part of any one else. As to the mortgage itself, it is enough to say, that the debt is gone, and the mortgagor and those under him are liable to no possible attack from the mortgagee and those under him. March 3, 1879. THE COURT. In Moore's Appeal, just decided, it has been settled that the clause in a deed of conveyance "under and subject" to a mortgage or other encumbrance 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 encumbrance, or such an agreement may be implied from the circumstances. It follows that Bardsley v. Delp. Jan. 22, 1879. Bills and notes—Accommodation paper-Fraudu lent negotiation of note-Holder for value, who is-Note taken in payment of antecedent debtAffidavit of defence law-Errors and appeals -Writ of error to order of Court discharging a rule for judgment for want of a sufficient affidavit of defence. the maker and the payee, cannot be affected by them, unA holder without notice of equities subsisting between less he occupy the position of a holder without consideration. A holder of a note taken in payment of an antecedent debt, is a holder for a valuable consideration. In an action upon a note by the indorsee against the maker, the defendant filed an affidavit of defence, averring that the payee had indorsed the note to the plaintiff in violation of an agreement contemporaneous with the execution of the note, that it should be applied to a specific purpose; further, that the plaintiff did not purchase the note for a valuable consideration, but received the same for an antecedent debt: Held (reversing the judgment of the Court below), that the affidavit was insufficient to prevent judgment. The words "for an antecedent debt," construed. Error to the Common Pleas No. 1, of Philadelphia County. Assumpsit, by William Bardsley against Allen Delp, the maker of a promissory note drawn to the order of M. K. Barndt, and by him indorsed to the plaintiff. |