Hicks v. McGarry

Campbell, C. J. Plaintiff sued defendant before a justice upon an implied covenant in a deed, and [668] obtained judgment which was reversed on certiorari. She brings error on the reversal. Plaintiff held a mortgage in her own name against Eobert Le Eoy and wife, who conveyed the mortgaged premises to McGarry by deed with the following clause: “The above premises are conveyed subject to a mortgage given by the parties of the first part to Austin Wakeman for the sum of six hundred dollars, which the said party of the second part assumes and agrees to pay.” There was no mortgage given to or ever held by Wakeman, but he had acted for plaintiff in collecting money on her mortgage. The mortgage was foreclosed by advertisement, and a balance remained unpaid, for which this suit was brought. If this deed had properly referred to the mortgage, so as to identify it, we have held that in a foreclosure proceeding in equity, the mortgagee might, where as in this case the mortgage was included in the purchase money, be so far subrogated to the mortgagor as to have the benefit -of such an obligation. The reasons for this are peculiar to equity and are explained in Crawford v. Edwards, 33 Mich., 354, and Miller v. Thompson, 34 Mich., 10. The case of Higman v. Stewart, ante, p. 513, decided at this term, shows what conditions must exist to uphold a decree for such a liability. But we have held in Pipp v. Reynolds, 20 Mich., 88, and Turner v. McCarty, 22 Mich., 265, that no action at law will lie by a third person against a promisor who has promised to pay an obligation from a debtor of such person, but who has had no dealings with the creditor. McGarry was only responsible immediately to Le Eoy his grantor, and the equities cannot be worked out in an action at law by the mortgagee against him alone. He never made any contract with plaintiff even assuming that she identifies herself with tHe mortgage, and. cannot, therefore be sued by her in [669] assumpsit or covenant upon an agreement to which she was no party. The judgment must be affirmed with costs. The other Justices concurred.