In dealing with any of these defences it is obvious that all three parties should have an opportunity of litigating the question since all are interested in it, and it is desirable to have all concluded by the judgment. If a creditor who sues the promisor and is met by the defence of fraud or mistake in the contract nevertheless prevails, but being unable to collect his judgment sues the original debtor, as he would be allowed to do in many jurisdictions, clearly the debtor cannot be concluded by the judgment in the first case and the creditor must try the same question again and perhaps with a different result.22
Ritter v. Phillips, 53 N. Y. 586 (payment). But see Mollohan v. Masters, 45 App. D. C. 414; Knickerbocker life Ins. Co. v. Nelson, 78 N. Y. 137. The same result has been reached even though the purchaser of the equity of redemption does not assume the mortgage provided the amount of the mortgage is deducted from the purchase price. Scull v. Idler, 79 N. J. Eq. 466,81 Atl. 746; Higbee v. Ętna Building &. Loan Asm., 26 Okla. 327, 100 Pac. 236. But if the amount of the mortgage is not thus deducted, nor payment of the mortgage assumed, the purchaser may set up usury. First Nat. Bank v. Drew, 226 111. 622, 80 N. E. 1082, 117 Am. St. Rep. 271, 10 L. R. A. (N. S.) 857; Grove v. Great Northern Loan Co., 17 N. Dak. 352, 116 N. W. 345, 138 Am. St. 707. See also Ford v. Washington Nat. Building, etc., Co., 10 Idaho, 30, 76 Pac. 1010, 100 Am. St. Rep. 192.
21 Pope v. Porter, 33 Fed. 7 (informal execution); Santa Cruz v. Wykes, 202 Fed. 357,120 C. C. A. 485; Kennedy v. Brown, 61 Ala. 296 (coverture); Davis v. Davis, 19 Col. App. 797, 127 Pac. 1051 (statute of limitations); Key West Coal Co. v. Porter, 63 Fla. 448, 58 So. 599 (failure of consideration); Mackey v. Ballou, 112 Ind. 198, 13 N.E. 715; Gowans p. Pierce, 57 Kan. 180, 45 Pac.
586 (unauthorised signature to note); Cox v. Horie, 115 Mass. 120 (erroneous amount); Comstock v. Smith, 26 Mich. 306 (coverture); Miller p. Thompson, 34 Mich. 10 (invalid execution); Crawford v. Edwards, 33 Mich. 354 (failure of consideration); Lee v. Newman, 55 Miss. 365 (invalidity); Johnson v. Pormely, 14 Hun, 398 (payment); Ferris v. Crawford, 2 Denio, 595 (payment); Horton v. Davis, 26 N. Y. 495 (want of record); Freeman p. Auld, 44 N. Y. 50 (failure of consideration); Parkinson v. Sherman, 74 N. Y. 88, 30 Am. Rep. 268 (failure of consideration); Bennett v. Bates, 94 N. Y. 354, 370 (invalidity of mortgage); Howard v. Robbins, 67 N. Y. App. Div. 245, 73 N. Y. S. 172; Newton v. Evers, 143 N. Y. App. Div. 673,128 N. Y. 8, 327 (lack of title in mortgagor). As stated in Oglesby p. South Georgia Grocery Co., 18 Ga. App. 401, 402, 89 S. E. 436:
"If one assumes to pay a definite amount of the indebtedness of another, it is none of his concern whether the debt thus assumed is greater or lees than the actual indebtedness. Bush v. Roberts, 4 Ga. App. 531, 62 S. E. 92." But see Goodman v. Randall, 44 Conn. 321; Bowser p. Patrick, 23 Ky. L. Rep. 1578, 65 S. W. 824 (champerty).