This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If A buys property from C which is encumbered by liens held by B, and A is not bound by his contract with C to pay off the liens but subsequently in consideration of a release of the lien1 advance to waive it if A pays the debt, A's promise is not within the statute,9 but without B's agreement to waive it A's promise is within the statute.10 So if A has a lien on B's stock for feeding it, and X claiming a lien on the same stock, promises to pay A the amount of his lien if A will release it, X's promise is not within the statute.11
7 Kelley v. Greenough, 9 Wash. 659; 38 Pac. 158.
8 Harbury, etc., Co. v. Martin (1902), 1 K. B. 778.
1 Sutton v. Grey (1894), 1 Q. B. 285; Swan v. Nesmith, 7 Pick. (Mass.) 220; 19 Am. Dec. 282; Osborne v. Baker, 34 Minn. 307; 57 Am. Rep. 55; 25 X. W. 606; Bul-lowa v. Orgo, 57 N. J. Eq. 428; 41 Atl. 494; Guggenheim v. Rosenfeld, 9 Baxt. (Tenn.) 533; Bradley v. Richardson, 23 Vt. 720.
1 Choate v. Hoogstraat, 105 Fed. 713; Wooten v. Wilcox, 87 Ga. 474; 13 S. E. 595; Power v. Rankin, 114 111. 52; 29 N. E. 185; Scott v.
White, 71 111. 287; Williamson v. Rexroat, 55 111. App. 116; MeCas-land v. Doorley, 47 111. App. 513; Parker v. Dillingham, 129 Ind. 542; 29 X. E. 23; Crawford v. King, 54 Ind. 6; Spooner v. Dunn, 7 Ind. 81; 63 Am. Dec. 414; Vaughn v. Smith, 65 la. 579; 22 N. W. 684; Stewart v. Campbell, 58 Me. 439; Fears v. Story, 131 Mass. 47; Hodg-ins v. Heaney, 15 Minn. 185; Joseph v. Smith, 39 Neb. 259; 42 Am. St. Rep. 571; 57 X. W. 1012; Proven-chee v. Piper, 68 X. H. 31; 36 Atl. 552; Blackford v. Gaslight Co., 43 X. J. L. 438; Rees v. Jutte, 153 Pa. St. 56; 25 Atl. 998; Powell v. Dunor a reduction of the amount thereof2 promises to pay the debt secured by the lien, the promise is not within the statute. It is "a mere arrangement to relieve the property of a lien."3 Thus, if B holds a chattel mortgage on C's horse, and C sells said horse to A, A's subsequent promise to B to pay the mortgage note if C will release the lien is not within the statute.4 A promise to pay a claim in order to acquire or retain property has been held not to be within the statute even if the promisor was under no prior personal liability to anyone. Where property has passed to A out of the estate of C, deceased, and A, in consideration that B will refrain from attempting to apply such property to the satisfaction of C's debt to B, agrees to pay it himself, such contract is not included in this clause of the statute.5 Thus, if a lessee of realty dies, and his widow in order to retain possession agrees to pay the rent personally, her promise is not within the statute.6 Where A has not received property from C's estate, but expects to gain personally by delay, his promise to pay C's debt has been held to be within the statute.7
If the lien is not waived, the contract on these facts is within the statute.8 So if the lien is prospective, and B agrees in woodie, 69 Vt. Ill; 37 Atl. 227 (citing Ide v. Stanton, 15 Vt. 685; 40 Am. Dec. 698) ; McGraw v. Franklin, 2 Wash. 17; 25 Pac. 911; 26 Pac. 810; Weisel v. Spence, 59 Wis. 301; 18 N. W. 165.
2Fisk v. Reser, 19 Colo.88; 34 Pac. 572. The court said that it was "as between himself and payee an original agreement based upon a new and sufficient consideration moving from the creditor and promise to himself for his benefit."
3 Williamson v. Rexroat, 55 111. App. 116. "An original undertaking on a valuable consideration.' Wooten v. Wilcox, 87 Ga. 474, 476; 13 S. E. 595.
4 Provenchee v. Piper, 68 N. H. 31; 36 Atl. 552. (It is "not a contract for the payment of (C's) debt, but for the purchase of the plaintiff's interest in the horse.")
5 French v. French, 84 la. 655; 15 L. R. A. 300; 51 N. W. 145; Muller v. Riviere, 59 Tex. 640; 46 Am, Rep. 291.
6 Linam v. Jones, 134 Ala. 570; 33 So. 343.
7 Schaafs v. Wentz, 100 la. 708; 69 N. W. 1022. A was C's father-in-law and was already surety on another claim. The estate proved to be insolvent. Distinguishing Helt v. Smith. 74 la. 667; 39 N. W. 81; Wilson v. Smith, 73 la. 429; 35 X. W. 506.
8 Greene v. Latcham, 2 Colo. App. 416; 31 Pac. 233; Vaughn v. Smith, 65 la. 579; 22 N. W. 684; Stewart v. Campbell, 58 Me. 439; Brightman v. Hicks, 108 Mass. 246.