10 irnonanrr amronrma. `
that, "where as debt already exists from one person to another; a prom-
ise by a third person to pay such debt being primarily for the benefit of
the original debtor, and to relieve him from liability to pay it, (there
being no novation,) he hasa right of action against the promisor for his
own indemnity; and if theyoriginal creditor can also sue, the promisor
would be liable to two separate-actions, and therefore the rule is that the
original creditor cannot sue." The cases in which this rule is applied
are those in which the right of action is based solely upon the naked
promise to pay; it being held that the maker thereof should not be held
· liable to two actions on an agreement made solely with one. The doc-
trine applicable to the present case is found fully stated in the same
opinion_ in the following terms: p p
"We do not propose to enter at large upon a consideration of the inquiry
how far privity of contract between a plaintiff and defendant is necessary to
the maintenance of an action of assumpsit. A The subject has been much de- ·
hated, and the‘decisions‘a1•e notall reconcilable. No doubt the general rule
· is that such a privity _must exist. But there are confessed1y many exceptions
toit. One of them, and byfarthe most frequent one, is the case where, uu·
.der a contract between two persons, assets have come to the promisor’s hands
l or under his control, which in equity belong to a. third party. . In such a case
it is held that the third person may sue in his own name. _But then the suit
_ _ is founded rather on` the implied undertaking the law raises from the posses-
sion of the assets than on the express promise." ` ‘
p In thecase on trial, the mortgaged corn belonged in equity to the
plaintiil`s;_»that_ is to say, they were entitled, by virtue of their mortgage,
to take possession thereof, to sell- the same, and apply the proceeeds to
the payment of the debt due them. The defendant came into possession
of these assets solely through the contract he made with Cheney, whereby
he; assumed and promised to pay the debt due plaintiffs as part of
the purchase price of the corn, and as, by means of this possession thus
obtained, he has been enabled to sell the corn, and now holds the pro—
ceeds, he is liable to suit on part of plaintiffs. V A
The further point is made that the mortgage was not so executed as to
bind Mrs. Cheney, and that, consequently, the defendant is relieved from
liability. The debt which the mortgage was given to secure was her
debt, and thecorn belonged to her. The defendant got possession of the
· corn by agreeing to pay the mortgage debt as a part of the purchase price,
and he bought subject to the mortgage. He cannot now be heard to urge
iinformalities in the execution of the mortgage as a reason why he should
not perform his agreement to pay the amount actually due on the mort-
C gage. The real question isnot as to the validity of the mortgage, but
whetherjthe defendant should beheld to the performance of his agreement
`to pay the debt due plaintiffs. _ The demurrer is overruled. _