Citations
- 37 N.Y. 671
Full opinion text
*Hunt, C. J.
principles applicable to Two this case, must now be deemed as settled: 1. That in a contract between A. and B., wherein B. assumes and undertakes, upon a good consideration from A., to pay a certain sum of money to C., the latter may maintain an action against B. to recover the money, and this, although the arrangement was originally made without his knowledge or assent. This principle has been established, both where personal property was the subject of the contract, and where real estate was conveyed, upon which there was a mortgage, the amount of which the grantee promised that he would pay to the mortgagee. (Lawrence v. Fox, 20 N. H. 268; Burr v. Beers, 24 N. Y. 178; Hartley v. Har rison, Id. 171; Russell v. Pictor, 7 Id. 171.) 2. That where land is conveyed simply “ subject to a mortgage,” and there is no express agreement to pay, no agreement will be implied; and no action involving a personal liability can be maintained by the mortgagee against the buyer. (Belmont v. Coman, 22 N. Y. 438.)
The plaintiff bases his claim, upon the first of these principles; the defendants resist it,- upon the second, íf the article of transfer of October 8th, 1853,'may fairly be held to contain a promise to pay the plaintiff’s debt, he may recover upon it; if not, he must fail or seek some other ground.
In the case of Belmont v. Coman (supra), it was held, that the, transaction amounted simply to a conveyance of the equity of redemption of the land. The deed contained full covenants, and the recital of the mortgages was to qualify simply the grantor’s liability on his covenants. The conveyance of the land, with its liability to the incumbrances specified, was the evident and sole intention of the parties. The deed containing no express promise to pay the liens, it was held, and rightly, that none should be implied.
In the present case, the language of the instrument and the intent of the parties are different. Here was no incumbrance on the property conveyed. The contract to indemnify the builder of the sewer was merely the personal obligation of the partnership, and was not a lien upon the property conveyed. The intent to