Opinion by
Gаlasso, the defendant, appeals from judgment on the pleadings. Plaintiff is mortgagee of a purchase money mortgage made by Robert Wasyl, dated October
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6, 1928, securing a debt payable in three years. After reducing the principal to $1,700, he conveyed the mortgaged property to the defendant, Galasso, in 1937 subject to the balance due, Galasso assuming and agreeing to pay the debt. Such liability continues until the debt is paid:
Kirker v. Wylie,
In his brief the appellant-defendant states his position as follows: “The proper procedure by a mortgagee to hold a grantee to his covenant in a deed is to have the suit brought in the name of the mortgagor tо the use of the mortgagee; this can only be done by and with the consent of the mortgagor; the plaintiff has not done so. The mortgagee sues directly in her own name. By the second section of the Act of 1878, “The right tо enforce such personal liability shall not enure to any person other than the person with whom such an agreement is made, etc.’ [the rest of the section is quoted below 1 ]. As the plaintiff mortgagee is not а person with whom the covenant in the deed from Wasyl to Galasso was made, she is directly excluded by the statute from bringing an action against Galasso to enforce the agree *396 ment; and as the statute must be striсtly pursued, she cannot maintain her present suit.”
In other words, defendant contends that section 2 of the Act of June 12, 1878, P. L. 205, 21 PS 655, 656, disqualified plaintiff-mortgagee from enforcing, in this suit, defendant’s promise to pay the debt. He contеnds that, within the words of the statute, he “has bona fide parted with the encumbered property” and that his assumption was not a “continuing liability.” This contention was properly rejected by the common pleas of Allеgheny County, whose judgment for plaintiff was affirmed by the Superior Court:
It is sеttled that by taking “under and subject” without more, the grantee agrees to indemnify his grantor against loss and that a grantee who, (in the words of the Act of 1878) “shall, by an agreement in writing, have expressly assumed a personal liability” for the debt, thereby agrees to indemnify not merely against loss but against liability:
Ruzyc et ux. v. Brown et ux.,
It is also settled that, to avoid circuity of action, such indemnity contrаcts may be enforced in a single suit in the name of the mortgagor (Wasyl) to the use of the mortgagee (plaintiff) against the grantee (defendant).
Frey v. United Traction Co. of Pittsburgh,
Defendant’s submission recognizes the use procedure, but he argues that the mortgagee-plaintiff can only bring such a suit “by and with the consent of the mortgagor” ; and, not having done so, the judgment is without support. The argument continues that as Wasyl, the mortgagor, is dead, and as no аdministration has been raised, there is no nominal or legal plaintiff to consent and therefore his obligation cannot be enforced although he has no defense on the merits. Plis suggestion must be rejected. He has no defense. His agreement to pay the debt which was then overdue, created liability which continued until the debt was discharged; it was a continuing liability as the words were used in section 2 of the Act of 1878;
Kirker v. Wylie,
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It is unnecessary to refer to the development of the law in this Commonwealth allowing the real party in interest to sue in his own name instead оf recovering in a suit to his use. The rule now is that stated in Restatement, Contracts, sections 133, 134, 135;
Com. v. Great American Indemnity Co.,
Rule 2002 of the Pa. Rules of Civil Procedure (
The Superior Court in applying the words of Rule 2002 requiring that “all actions shall be prosecuted by and in the name of the real party in interest . . ,” as qualified by clause (c) excluding “actions where a statute
2
or ordinance provides otherwise,” referred to, and apparently treated as binding, a comment made by the Rules Committee. The Superior Court said, “Appended to the rule promulgated in
We cannot agree with the conclusion of the Superior Court that Rule 2002 is not applicable. Wasyl’s personal representative would not be permitted to object to becoming legal plaintiff. Prior to the adoption of the Rules of Civil Procedure, this record would have been considered on appeal as if the amendment had been made in the court below. Rule 2002 superseded actions to the use as theretofore understood excepting where required by the terms of the rule. The comment of the Rules Committee, quoted by the Superior Court, is not аpplicable because the defendant-grantee’s assumption was one of continuing liability. The comments of the Rules Committee were not adopted by this Court and are not binding in the sense that the Rules are binding. At the beginning of the Rules published in
Undoubtedly the plaintiff-mortgagee is the real party in interest, as that term is used in Rule 2002. As the defendant expressly assumed such continuing liability *401 (to use the words of section 2 of the Act of 1878) the right to sue is not restricted by section 2. Resort to Rule 126 was therefore unnecessary.
The judgment is affirmed.
Notes
“Section 2. The right to enforce such personal liability shall not enure to any person other than the person with whom such an agreement is made, nor shall such personal liability continue after the said grantee has bone fide parted with the encumbered property, unless he shaU have expressly assumed such continuing liability.”
For example: suit on a bond given pursuant to the Act of May 31, 1911, P. L. 468,
Commonwealth of Pennsylvania, to use, v. National Surety Co.,