Thorp v. Keokuk Coal Co.

47 Barb. 439, 1866 N.Y. App. Div. LEXIS 104

• Court: New York Supreme Court
• Decided: November 5, 1866
• Status: Published

Opinion

George G. Barnard, J.

It is now finally settled that the clause in. the deed to the defendant, from Franklin, preates a cause of action for the amount of the mortgage assumed by the defendant,■ in favor of the holder of the-mortgage. (Lawrence v. Fox, 20 N. Y. Rep. 268. Burr v. Beers, Id. 178.) The decision in these cases is put on the broad principle that if a person makes a promise to another for the benefit of a third person, such third person may maintain an action on the promise. The defendant has promised to pay this mortgage to the holder as part of the purchase price of the land. The action is made out by the promise, and rests solely upon it. The defendant can make no defense to this action because of the existence of a clause in the bond accompanying the mortgage that the lands covered by the mortgage should be first sold before the bond should be demanded. It is no answer to a direct subsequent undertaking and agreement, by the defendant, to pay this mortgage debt to the plaintiff..

[New York General Term, November 5, 1866,

Judgment affirmed, with costs.

Ingraham, J.

The condition in the bond was intended for the personal benefit of the obligors, and merely exempted them from being sued before the mortgage was foreclosed. The assumption of the debt by the defendant was not to pay the bond according to its condition, but the mortgage. The debt due by the mortgage was the whole debt, and when the defendant agreed to pay this, it became liable for it when due, and is not entitled to the benefit of the covenant in the bond.

I concur in affirming the judgment.

Cheek.®, J. also concurred.

Judgment affirmed.

George G, Barnard, Clerke and Ingraham, Justices.]