Whatever the hardship upon the promisor may be in being liable to two persons when he promised but one, most courts have found it the simpler alternative, a recovery by either party being a bar to an action by the other.93 In mortgage cases especially the promisor may thus find himself in a difficult position between the mortgagee and the promisee, the grantor of the premises. If the promisor fails to keep his promise to pay the debt, he is liable to the promisee to the full amount of the debt; 94 and unless the promise can bear the construction of a promise to indemnify against loss, this seems sound. But the recovery of the promisee cannot affect the mortgagee's rights against the properly, and if he forecloses the mortgage, the promisor loses the property though he has already paid the debt. The proper relief for the promisor is an application to equity when he is sued by the promisee, for an injunction against the action on terms of payment of the debt to the mortgagee. Equity should grant such an injunction, for it does not injure the promisee, since the terms Imposed amount to a decree of specific performance of the promise.95 It seems also that if the mortgage has been foreclosed and the mortgagee thereby paid and the promisee freed from liability as mortgagor, the promisor should be entitled to an injunction against the collection of any judgment of the promisee against him, or if a judgment has already been collected, to an action on principles of quasi-contract to recover back the amount collected less costs and any payment or remaining liability of the promisee to the mortgagee.
90 Poe v. Dixon, 60 Ohio St. 124, 71 Am. St. Rep. 713, 54 N. £. 86. Cf. Blood v. Crew Levick Co., 171 Pa, 328, 337, 33 Atl. 344. The court there said: "As to the amount still due and unpaid on the mortgagee . . . the plaintiff cannot recover to her own use until she has been compelled to make payment and then only to the extent of payments actually made. An action might be maintained by the holder of the mortgage in the name of the covenantee for his use upon the express covenant to pay contained in the deed; and I see no reason why an action might not be brought by a covenantee to recover damages sustained by reason of the breach."
91 Wilson v. Stilwell, 9 Ohio St. 467, 75 Am. Dec. 477. A retiring partner, who had received a promise from the remaining partner that the latter would pay the firm debts was held entitled to sue upon the promise without having first paid the debts himself.
92 See also Brewer v. Dyer, 7 Cush. 337, 341. The promisee "might likewise have a remedy on the contract in case the plaintiff should not elect to adopt it."
93 Union Mut. L. I. Co. v. Hartford, 143 U. S. 187, 12 S. Ct. 437, 36 L. Ed. 118; Steene v. Aylesworth, 18 Conn. 244, 252; Tinkler v. Swaynie, 71 Ind. 562; Rodenbarger v. Bramblett, 78 Ind. 213; Poster v. Marsh, 25 Ia. 300; Smith v. Smith, 5 Bush, 626, 632; Baldwin v, Emery, 89 Me. 406, 36 Atl. 994; Rogers v. Gosnell, 51 Mo. 466, 469; Snider v. Adams Express Co., 77 Mo. 523; Beardslee v. Morgner, 4 Mo. App. 139, 143; Megber v. Stewart, 6 Mo. App. 498, 600; Weinreich v. Weinreich, 18 Mo. App. 364, 372; Anthony v. German Am. Ins. Co., 48 Mo. App. 65; American Nat. Bank p. Klock, 58 Mo. App. 335; Gunell v.. Emerson, 73 Mo. App. 291 (conf.. Bethany v. Howard, 149 Mo. 504, 61 S. W. 94); Strong v. Kamm, 13 Oreg. 172, 9 Pac. 331; Edmundson v. Penny, 1 Barr, 334, 44 Am. Dec. 137; Hoff's Appeal, 24 Pa. 200; Blood v. Crew Levick Co., 171 Pa. 328; Snyder v. Summers, 1 Lea, 634; Callender p. Edmison, 8 S. Dak. 81, 66 N. W. 425; Hull v. Hayward, 13 S. Dak. 291, 83 N. W. 270; Jones v. Thomas, 21 Gratt. 96. See also authorities in next note.
94Merer v. Hartman, 72 111. 442; Stout v. Folger, 34 Ia. 71, 11 Am. Rep. 138; Furnas v. Durgin, 119 Mass. 600, 20 Am. Hep. 341; Locke v. Homer, 131 Mass. 93, 41 Am. Rep. 199; Walton a. Buggies, 180 Man. 24, 61 N. E. 267; Strohauer v. Voltz, 42 Mich. 444, 4 N. W. 161; Dorringtor, v. Minnick, 15 Neb. 397, 19 N. W. 456; Rawson v. Copland, 2 Sandf. Ch. 251; Recort v. Higgins, 48 N. Y. 632; Sage v. Trus-low, 88 N. Y. 240; Wilson v. Stilwell, 9 Ohio St. 467, 16 Am. Deo. 477; Calender v. Edmison, 8 S. Dak. 81, 65 N. W. 425. See also infra, Æ1408. But see Faulkner v. McHenry, 235 Pa. 298, 83 Atl. 827. And it makes no difference that the promisor has sold the land again. Reed v. Paul, 131
Mass. 129. But if the mortgagee has been paid from sale of the land the promisee can recover only nominal damages. Muhlig v. Fiake, 131 Mass. 110; Williams v. Fowte, 132 Mass. 385. See also Wilson v. Bryant, 134 Mass. 291.
95Compare Ford v. Finney, 35 Ga. 258. In that case the mortgagee sued the mortgagor. The latter having sold the premises to a third party, who had agreed to pay the mortgage, brought a bill in equity joining both the mortgagee and the purchaser, praying that the latter be compelled to pay the debt. The bill was sustained. See also Wilson v. Stilwell, 9 Ohio St. 467, 15 Am. Dec. 477.