194 Pa. 94 | Pa. | 1899
Opinion by
The facts developed at the trial may be briefly stated. The plaintiff, by deed of June 15, 1887, conveyed to the defendant a tract of land "in Kansas which was subject to a mortgage of $2,500, given by the plaintiff. On July 27, the parties entered into an agreement which, after reciting the conveyance, the mortgage and an agreement by the defendant to convey five lots in Verona to the plaintiff, concludes as follows: “Now it is agreed between the parties hereto, each for himself, his heirs and assigns, that the said Cribbs shall assume, and by these presents he does assume, the payment of the said above recited mortgage, together with the interest thereon,” etc. The consideration named is the undertaking by the plaintiff to pay the taxes for 1887 and all claims on the farm prior to that date, and to release to the defendant all rights and interest which he had acquired in the Verona lots. The mortgage debt fell due and the land was sold at sheriff’s sale for less than the amount of the mortgage. Suit was then brought by the holder of the mortgage against the plaintiff, on his bond, to recover the deficiency, and a judgment was recovered against him. That suit the defendant was notified to defend, but he failed to do so.
As a contract of indemnity it was broken as soon as the plaintiff’s liability became fixed, and he could then maintain an action on it without proof of payment. That on a bond or covenant to indemnify against claims the obligee is entitled to sue as soon as his obligation to pay becomes absolute has been settled by a long line of cases among which are Gardner v. Grove, 10 S. & R. 136, Stroh v. Kirmnel, 8 Watts, 157, Leber v. Kauffelt, 5 W. & S. 440, Carman v. Noble, 9 Pa. 366, Ardesco Oil Co. v. Oil & Mining Co., 66 Pa. 375, and Bamford v. Keefer, 68 Pa. 389. The decision in Blood v. Crew-Levick Co., 171 Pa. 328, was not intended as a departure from the rule. That case was decided on its own peculiar facts. The land which, as between the parties, was primarily liable for the mortgage debt had not been sold, and the liability was not fixed as to eitiier its character or amount.
The judgment is affirmed.