Mr Justice. Blatohfoeb
delivered the opinion of the court. .
After stating the facts as above, he said:
It is objected by the appellee Dickey, that there is nothing in the record to show that the amount in controversy exceeds $5,000; and that the decree, so far as Elliott is concerned, is not a final one. It is urged that the provision of the decree is, that, if the amount specified is not paid to Dickey within one day, the premises shall be sold, and, if the proceeds of sale are insufficient, the master shall report the amount of the deficiency; that this is not a deficiency decree against Elliott; that'it does not appear that it will ever be necessary to enter a deficiency decree against any one; that, on the decree, as it stands, no execution can be issued against any onethat dll the evidence goes to show that the deficiency decree will not exceed $2,000; and that .the decree is merely interlocutory as to Elliott, because,. until a sale is made, there can be no cause of coinplaint on the part of Elliott.' The answer to this objection is, that the decree dismisses the original, bill, and adjudges that Elliott agreed-with Sackett, for a valuable and sufficient consideration, to pay the amount due on the incumbrance. The amount involved in the original suit is the entire amount of the incumbrance, which Elliott is made by the deed to him to agree to j>ay, and the bill seeks relief from liability for that amount, by striking out the clause from the .deed. The decree denies that relief. If that relief was wrongly denied, all relief against Elliott under the
cross-bill necessarily falls, as the only liability from Elliott to Dickey arises from that danse in the deed.
On the merits, we are of the opinion that Elliott is entitled to the relief he asks by his original bill. The terms of the written agreement between Sackett and Elliott are very clear, and show that the parties were merely making an exchange of land. Sackett agrees to convey to Elliott the Calumet avenue property, subject to the $9,000 incumbrance, and to assign an insurance policy, and to pay $50. Elliott agrees to convey to Sackett three lots subject to a specific incumbrance, and two other pieces of property clear of incumbrance. It is true, that Elliott agrees to pay to Sackett $15,000, but the agreement expressly states that that sum is to be paid “ in the manner following,” which is by conveying the land described. The land to be conveyed to Sackett is apparently valued by the agreement, for the purposes of the’ transaction, at $15,000. Nothing is said about deducting the $9,000 from the price of the property to be conveyed to Elliott, nor is any sum named as.the purchase money of that property. An agreement merely to, take land, subject to a specified incumbrance, is not an agreement to assume and pay the incumbrance. The grantee of an equity of redemption, without words in the grant importing in some form that he assumes the payment of a mortgage, does not bind himself personally to pay the debt. There must be words importing that he will pay the debt, to make him personally liable. The language of the agreement in the present case does not amount to such an undertaking on the part of Elliott. It is only a statement that the conveyance is to be subject to the incumbrance, and creates no personal liability in the grantee. Such is the law in Illinois, where this land is situated,
Comstock
v. Hitt, 37 Ill. 542;
Fowler
v. Fay, 62 id. 375, as well as the law in other States.
Belmont
v. Coman, 22 N. Y. 438;
Fiske
v. Tolman, 124 Mass. 254.
Under the written agreement,, therefore, it is plain that E1-liott assumed no personal liability. Both parties executed this agreement and' are to be held to have understood- it in that sqnse. Sackett, in his answer, does not deny the allegation of the original bill, that the agreement between the parties was
that neither Sackett nor Elliott should assume or agree to pay-outstanding incumbrances on the respective parcels of land, and that that appears by the written agreement. But the answer, while admitting that Sackett entered into an agreement in writing to convey the premises in a certain manner and on certain conditions, and referring to such agreement for certainty, sets up, that, after the written agreement was made, the parties came to an understanding that Elliott would accept a deed whereby he should assume and agree tó pay the $9,000 1 incumbrance, and that the deed given “ contained that provision accordingly.” There is no evidence to support this allegation. Sackett testifies that he never had any conversation with Elliott in regard to-his assuming'liability for the mortgage, but that they met together and the deeds to each other were passed. Sackett had employed Hill as Ms agent to dispose of the Calumet avenue property. Elliott testifies that Hill offered him the property and wanted him to assume the incumbrance, but he refused, and that finally Hill brought in the agreement which -was signed, by both parties. Hill testifies to the same effect. Elliott says that when Sackett gave him ■ the deed in Hill’s office, he was unwell; that he did not read that part of, the deed which states that he is to ¡assume and pay the incumbrance, but only read the prior part which states that the conveyance is made subject to the incumbrance; and' that he discovered the mistake in the deed a short time before he commenced this suit.
The actual contract of the parties, as understood by both of them, is shown by the written agreement. Nothing was agreed upon to vary that. Saékett, as he shows by Ms testimony, knew the difference as to liability which the difference in the language would make, and knew what the language of the writ*, ten agreement was, and must be held to have understood it to mean what it does mean, and to have known that Elliott understood it in the same sense. So, in. the departure from it in the deed, there was a mutual mistake, it not being shown, as set up in the answer of Sackett, that there was an intention, fully and fairly understood by both parties, that in the deed Elliott should assume and agree to pay the incumbrance. Under all
the circumstances proved, in this. case (and every case of the kind must depend very largely on its special circumstances), Elliott had a right to presume that the deed would conform to the written agreement, and was not' guilty of such negligence or laches, in not observing the provisions of the deed, as should preclude him from relief.
Neither Dickey nor the trustee was a party or a privy to the transaction between Sackett and Elliott, nor was the trust deed taken, or the debt created or extended, or anything else done by Dickey or his trustee, in reliance on any assumption of the debt by Elliott. As respects the trust deed, the parties to it and to the debt it secured occupied the same position when this suit was brought as when the deed to Elliott was delivered, no new rights having been acquired in reliance on that deed, and none which existed when it was delivered being sought to be impaired by the relief asked by Elliott. Elliott does not seek to interfere with the property he conveyed to Sackett. No circumstances exist on which laches can be predicated on the part of Elliott as to seeking a remedy. The fact that Elliott made two payments of the interest on the incumbrance is not inconsistent with his not having assumed the payment of the incumbrance.
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Mr Justice. Blatohfoeb
delivered the opinion of the court. .
After stating the facts as above, he said:
It is objected by the appellee Dickey, that there is nothing in the record to show that the amount in controversy exceeds $5,000; and that the decree, so far as Elliott is concerned, is not a final one. It is urged that the provision of the decree is, that, if the amount specified is not paid to Dickey within one day, the premises shall be sold, and, if the proceeds of sale are insufficient, the master shall report the amount of the deficiency; that this is not a deficiency decree against Elliott; that'it does not appear that it will ever be necessary to enter a deficiency decree against any one; that, on the decree, as it stands, no execution can be issued against any onethat dll the evidence goes to show that the deficiency decree will not exceed $2,000; and that .the decree is merely interlocutory as to Elliott, because,. until a sale is made, there can be no cause of coinplaint on the part of Elliott.' The answer to this objection is, that the decree dismisses the original, bill, and adjudges that Elliott agreed-with Sackett, for a valuable and sufficient consideration, to pay the amount due on the incumbrance. The amount involved in the original suit is the entire amount of the incumbrance, which Elliott is made by the deed to him to agree to j>ay, and the bill seeks relief from liability for that amount, by striking out the clause from the .deed. The decree denies that relief. If that relief was wrongly denied, all relief against Elliott under the
cross-bill necessarily falls, as the only liability from Elliott to Dickey arises from that danse in the deed.
On the merits, we are of the opinion that Elliott is entitled to the relief he asks by his original bill. The terms of the written agreement between Sackett and Elliott are very clear, and show that the parties were merely making an exchange of land. Sackett agrees to convey to Elliott the Calumet avenue property, subject to the $9,000 incumbrance, and to assign an insurance policy, and to pay $50. Elliott agrees to convey to Sackett three lots subject to a specific incumbrance, and two other pieces of property clear of incumbrance. It is true, that Elliott agrees to pay to Sackett $15,000, but the agreement expressly states that that sum is to be paid “ in the manner following,” which is by conveying the land described. The land to be conveyed to Sackett is apparently valued by the agreement, for the purposes of the’ transaction, at $15,000. Nothing is said about deducting the $9,000 from the price of the property to be conveyed to Elliott, nor is any sum named as.the purchase money of that property. An agreement merely to, take land, subject to a specified incumbrance, is not an agreement to assume and pay the incumbrance. The grantee of an equity of redemption, without words in the grant importing in some form that he assumes the payment of a mortgage, does not bind himself personally to pay the debt. There must be words importing that he will pay the debt, to make him personally liable. The language of the agreement in the present case does not amount to such an undertaking on the part of Elliott. It is only a statement that the conveyance is to be subject to the incumbrance, and creates no personal liability in the grantee. Such is the law in Illinois, where this land is situated,
Comstock
v. Hitt, 37 Ill. 542;
Fowler
v. Fay, 62 id. 375, as well as the law in other States.
Belmont
v. Coman, 22 N. Y. 438;
Fiske
v. Tolman, 124 Mass. 254.
Under the written agreement,, therefore, it is plain that E1-liott assumed no personal liability. Both parties executed this agreement and' are to be held to have understood- it in that sqnse. Sackett, in his answer, does not deny the allegation of the original bill, that the agreement between the parties was
that neither Sackett nor Elliott should assume or agree to pay-outstanding incumbrances on the respective parcels of land, and that that appears by the written agreement. But the answer, while admitting that Sackett entered into an agreement in writing to convey the premises in a certain manner and on certain conditions, and referring to such agreement for certainty, sets up, that, after the written agreement was made, the parties came to an understanding that Elliott would accept a deed whereby he should assume and agree tó pay the $9,000 1 incumbrance, and that the deed given “ contained that provision accordingly.” There is no evidence to support this allegation. Sackett testifies that he never had any conversation with Elliott in regard to-his assuming'liability for the mortgage, but that they met together and the deeds to each other were passed. Sackett had employed Hill as Ms agent to dispose of the Calumet avenue property. Elliott testifies that Hill offered him the property and wanted him to assume the incumbrance, but he refused, and that finally Hill brought in the agreement which -was signed, by both parties. Hill testifies to the same effect. Elliott says that when Sackett gave him ■ the deed in Hill’s office, he was unwell; that he did not read that part of, the deed which states that he is to ¡assume and pay the incumbrance, but only read the prior part which states that the conveyance is made subject to the incumbrance; and' that he discovered the mistake in the deed a short time before he commenced this suit.
The actual contract of the parties, as understood by both of them, is shown by the written agreement. Nothing was agreed upon to vary that. Saékett, as he shows by Ms testimony, knew the difference as to liability which the difference in the language would make, and knew what the language of the writ*, ten agreement was, and must be held to have understood it to mean what it does mean, and to have known that Elliott understood it in the same sense. So, in. the departure from it in the deed, there was a mutual mistake, it not being shown, as set up in the answer of Sackett, that there was an intention, fully and fairly understood by both parties, that in the deed Elliott should assume and agree to pay the incumbrance. Under all
the circumstances proved, in this. case (and every case of the kind must depend very largely on its special circumstances), Elliott had a right to presume that the deed would conform to the written agreement, and was not' guilty of such negligence or laches, in not observing the provisions of the deed, as should preclude him from relief.
Neither Dickey nor the trustee was a party or a privy to the transaction between Sackett and Elliott, nor was the trust deed taken, or the debt created or extended, or anything else done by Dickey or his trustee, in reliance on any assumption of the debt by Elliott. As respects the trust deed, the parties to it and to the debt it secured occupied the same position when this suit was brought as when the deed to Elliott was delivered, no new rights having been acquired in reliance on that deed, and none which existed when it was delivered being sought to be impaired by the relief asked by Elliott. Elliott does not seek to interfere with the property he conveyed to Sackett. No circumstances exist on which laches can be predicated on the part of Elliott as to seeking a remedy. The fact that Elliott made two payments of the interest on the incumbrance is not inconsistent with his not having assumed the payment of the incumbrance. As' owner of the property subject to the incumbrance, and desirous of retaining it so long as there was any value in the equity of redemption, he would naturally pay the interest to save a foreclosure.
The principles applicable to a case like the present are fully set forth in the opinion of this court delivered by Mr. Justice Harlan, in
Snell
v.
Insurance
Co., 98 U. S. 85, and the leading authorities on the subject. are there collected. Within those principles this is a case where, in the preparation of the deed to Elliott, there was, by mutual mistake, a failure to embody in the deed the actual agreement of the parties, as evidenced by the prior written agreement. The meaning of. that prior agreement is clear, and nothing occurred between the parties, after it was signed and delivered, to vary its terms, except the mere fact of the delivery of the deed, the terms of which are complained of and sought to be reformed. The deed did not effect what both the parties intended by the actual contract which
they made, and the case is one for the interposition of a court of equity.
The decree of the circuit court is reversed, with costs, so far as it dismisses the original bill, and so far as it adjudges that Dickey has any eguiUes as against Elliott, and so far as it adjudges that Elliott assumed and agreed to pay the amount due on the mortgage to Dickey, and so far as it adjudges that Elliott shall pay to Dickey the amount found due to him and the costs of the suit, and so far as it provides for an application by Sacked for an order that Elliott repay to him any sum which he may pay on the debt due to Dickey ¡ and the cause is remanded, to the circuit court, with directions to enter a decree in the originad suit granting the prayer of the bill with costs, and for such further proceedings in the original and cross-suits as may not be inconsistent with this opinion.