42 Ind. App. 653 | Ind. Ct. App. | 1908
The appellant brought this suit in the court below against the appellees, seeking to foreclose a mortgage on certain real estate described, and also to recover a personal judgment against appellees William M. Smith and Walter
From this judgment an .appeal is taken to this court, and errors assigned upon the overruling of appellant’s demurrer to the first and third paragraphs of the answer of appellees Jones and Smith, and appellant’s, motion for a new trial as against them.
The theory upon which appellant claims a right to a personal judgment against appellees Smith and Jones is that they are subsequent purchasers of the property, and that they assumed the payment of the mortgage upon the premises.
It is not because the transaction relates to real estate that the contract to pay the mortgage debt is taken out of the operation of the' statute of frauds, but because the promissor has, by his contract with the grantor of the land, agreed to pay part of the price of the land, which is his obligation, to the mortgagee. The fact that the party to whom he has thus agreed to pay part of the purchase price of the land happens to be a creditor of the seller is a matter of no controlling importance. It is his own debt he thus contracts to pay.
In every case that has come to our attention, in which the right to enforce an oral contract to pay a mortgage debt' made by a purchaser of the mortgaged premises has been upheld, the complaint has averred facts showing that the assumption of the debt was a part of the consideration of the sale of the land. Appellees have not set out in the complaint what the consideration was, so that the court could say that the contract was not within the statute of frauds.
The complaint was. clearly insufficient to authorize a personal judgment against appellees. This being so, any ruling made by the court on the demurrer to the answer or motion for a new trial was harmless. Judgment affirmed.
' Watson, C. J., not participating. Roby, J., dissenting.