8 FEDERAL REPORTER.
‘ 5,000 bushels of corn, stored in certain cribs, for the purpose of securing
the payment of a note for $1,000, due to Pope & Davis, of Chicago, Il-
linois. On the twenty—ninth of October, 1881, Cheney sold the corn to
the defendant, and executed a bill of sale thereof, in which it is provided
that said corn "is subject to a mortgage to Pope & Davis, of Chicago, Illi-
nois, for $1,000, which mortgage said Porter hereby assumes and agrees
to pay off and cancel." The defendant took possession of the corn, sold
the same, realizing some $2,000 therefrom, but has wholly failed to pay
off the mortgage or any part thereof, and the plaintiffs now seek to re-
cover judgment against him for the amount due them on the mortgage
debt. r A .
ln executing the note and mortgage, D. A. Cheney attached to his
name the word "agent;" but the papers do not disclose the name of a
principal, and the mortgage is so drawn as to be the act and deed of D.
A. Cheney, notwithstanding the use of the word "agent." On argument-
of the demurrer, it was stated by counsel that D. A. Cheney was doing
business in the name of his wife, and hence counsel for defendant, as-
suming that the debt due plaintiffs was that of the wife, and not of the
husband, seeks to make the point that no recovery can be had at law
. upon defendant’s undertaking, because the debt due plaintiffs was not
the debt of the mortgagor, D. A. Cheney; and in support of this propo-
sition counsel cites Jones, Mortg. §§ 755, 760, in which it is said:
"To support an action upon this ground, therefore, it is necessary, in the
· first place, that the grantor in whose favor the stipulation is made should him-
self be personally liable for the debt assumed by the grantee; and, in the sec-
ond place, that there be a debt or some obligation on the part of the person
. assuming the payment of the mortgage to support his undertaking. lf the
grantor be notf the mortgagor himself, or one who has bound himself person-
ally for the payment ofthe mortgage debt, the grantee in assuming the pay-
ment of the mortgage does not become personally liable through. the grantor
tothe holder of the mortgage to pay the debt to him. There is in such case
no chance for any equitable subrogation, and the agreement is considered as
a. mere declaration that the property was conveyed to the purchaser. subject
` to the lien of the mortgage."
, As already stated, the note and mortgage signed by D. A. Cheney,
agent, are so drawn as to bind him personally, and the fact that he was
doing business in his wife’s name would not in any way tend to relieve
him from such liability. Even if the wife was the real owner of the
business, still, in the execution of the note and mortgage to plaintiffs,
D. A. Cheney bound himself personally for the payment of the debt,
and therefore, when the defendant, in consideration of the sale and de-
livery of the corn to him, contracted with D. A. Cheney to pay the debt
due plaintiffs as part of the purchase price of said corn, the plaintiffs can
sue on such contract according to the very authority relied on by coun-
sel for defendant. Furthermore, the rule given in the authority cited
is the one applicable to mortgages on realty, in which the question is
whether the purchaser of the real estate has bound himself to pay the
mortgage debt in any event, or has only bought the realty subject to the
mortgage. In the case at bar the mortgage was on personal property