Another peculiar situation arises where a mortgagor makes a second mortgage and the second mortgagee agrees to pay off the first mortgage. Subsequently the first mortgagee endeavors to take advantage of this promise. He is denied the right and justly. In the ordinary case where a purchaser assumes and agrees to pay a mortgage he has received a quid pro quo for the amount of the mortgage. He owes the amount of the mortgage to some one. In the case under consideration, however, the second mortgagee does not owe the amount of the first mortgage. He has agreed virtually to lend the amount of it to the mortgagor by paying the first mortgagee. A promise to lend a debtor money, though on technically good consideration, is not one which a court of equity should enforce for the benefit of a creditor. Nor can breach of the promise by the second mortgagee be ground for substantial damages. The only consequence of the breach is that the debtor continues liable to the first mortgagee instead of to the second mortgagee for the amount of the first mortgage. As the rights of the first mortgagee against the promisor cannot exceed the rights of the promisee there is no asset of value applicable to the mortgage. As the court said in the first case that presented these facts, "if the action were allowed, any one who promised to advance money to another to pay his debts would be liable to an action by the creditor." 72
30 N. J. Eq. 412; Mount p. Van Nees, 33 N. J. Eq. 262, 26S; Eakin p. Shults, 61 N. J. Eq. 156, 47 Atl. 274; King v. Whitely, 10 Paige, 466; Trotter v. Hughes, 12 N. Y. 74, 62 Am. Deo. 137; Vrooman v. Turner, 69 N. Y. 280, 25 Am. Rep. 195; Smith p. Cross, 16 Hun, 487; Young Men's Assoc. d. Croft, 34 Oreg. 106; Portland Trust Co. v. Nunn, 34 Oreg. 106, 56 Pac. 439, 75 Am. St. Rep. 668; Fry v. Amman, 29 S. Dak. 30, 136 N. W. 708, 39 L. R, A. (N. S.) 150; Osborne p. Cabell, 77 Va. 462.
Recovery was allowed in Cobb v. Fishel, 15 Col. App. 384, 62 Pac. Rep. 626; Dean p. Walker, 107 111. 640, 47
Am. Rep. 467; Marble Bank v. Mesar-Tey, 101 Ia. 285,70 N. W. 198; Haim v. Vogel, 69 Mo. 629; Crone v. Stinde, 156 Mo. 262, 65 8. W. 863; Llewellyn p. Butler, 186 Mo. App. 525, 172 8. W. 413; Hare v. Murphy, 45 Neb. 809, 64 N. W. 211, 29 L. R. A. 851; McDonald v. Finseth, 32 N. Dak. 400, 155 N. W. 863, L. R. A. 1916 D. 149; Brewer p. Mauer, 38 Ohio St. 543, 43 Am. Rep. 436; Merriman v. Moore, 90 Pa. 78; McKay p. Ward, 20 Utah, 149, 57 Pac. 1024, 46 L. R. A. 623; Caaselman's Adm. v. Gordon, 118 Va. 553, 88 S. E. 58; Enos p. Sanger, 96 Wis. 150, 70 N. W. 1069, 37 L. R. A. 862. 72 Garnsey v. Rogers, 47 N. Y. 233,