57. Helms v. Kearns, 40 Ind. 124; Neiswanger v. McClellan, 45 Kan. 599, 26 Pac. 18; Pike v. Brown, 7 Cush. (Mass.) 133; Thompson v. Cheesman, 15 Utah, 43, 48 Pac. 477; Morgan v. South Milwaukee Lake View Co., 97 Wis. 275, 72 N. W. 872.

58. Foster v. Atwater, 42 Conn. 244; Baldwin v. Emery, 89 Me. 496, 36 Atl. 994; Schmucker v.

In no case does it appear to have been suggested that an oral promise to pay a mortgage debt, maturing more than a year in the future, might come within the provision of the Statute of Frauds as to contracts not to be performed within a year, but it is by no means clear that it does not do so. It is possible, however, that the execution of the transfer by the mortgagor might be regarded as bringing the case within the English doctrine, accepted in some of the states, but repudiated in others, that the performance of a contract within a year by one party thereto is sufficient to take it out of this provision of the statute, though performance by the other is not to take place till after a year.61

The question whether, apart from the Statute of Frauds, evidence of an oral agreement of assumption might not be inadmissible by reason of the "parol evidence" rule, has been uniformly decided in favor of its admissibility, on the ground that it is introduced merely for the purpose of showing the true consideration of the conveyance,62 or the person to whom the

Sibert, 18 Kan. 104, 26 Am. Rep. 765.

59. See Browne, Stat. of Frauds, Sec. 366.

60. Pike v. Brown, 7 Cush. (Mass.) 133; Locke v. Homer, 131 Mass. 93; Urquhart v. Brayton, 12 R. I. 169. See Maine v. Cunis-ton, 98 Mass. 317; Burkhardt v. Yates, 161 Mass. 591, 37 N. E. 759.

61. See Browne, Stat. of consideration is to be paid.63 In oilier words, the con veyance is regarded as not intended to cover the ques tion of assumption of the mortgage vel non, and consequently evidence in that regard is admissible as of a "collateral agreement."64

Frauds, Sec. 166; 1 Smith's Leading Cases (8th Am. Ed.), 614, 624, notes to Peter v. Compton.

62. Strohauer v. Voltz, 42 Mich. 444, 4 N. W. 161; Drury v. Tre-mont Improvement Co., 13 Allen (Mass.) 168; Bolles v. Beach, 22 N. J. L. 680; Ordway v. Downey, 18 Wash. 412, 63 Am. St. Rep. 892, 51 Pac. 1047, 52 Pac. 228.

If the transferee assumes the payment of the mortgage debt, he cannot, on paying it, assert a right of recourse, on the principle of subrogation, against the mortgagor. On the other hand the mortgagor, if he pays the debt, may not only assert a personal liability against the transferee by reason of the assumption clause, but may enforce the mortgage against the land.65-66

Although a conveyance in terms "subject to" a mortgage does not of itself involve a personal liability upon the part of the transferee,67 the fact that in such case the price to be paid for the premises was agreed on, and the amount of the mortgage debt was deducted therefrom and left in the hands of the purchaser, the balance only being paid to the vendor, has been regarded as evidencing an agreement on the part of the purchaser to pay the amount of the mortgage debt, represented by the money so retained, to the mortgagee.68 The mere fact, however, that the estimated difference not accord with the facts.73 Such a statement has been said to be inserted merely to exclude a liability on the part of the purchaser for the whole sum named as the consideration, that is, to show that the purchase price is not to that extent still unpaid.74

63. Morgan v. South Milwaukee Lake View Co., 97 Wis. 275, 72 N. W. 872.

64. See Moore v. Booker, 4 N. D. 543, 62 N. W. 607; Fiske v. Gregory, 34 N. H. 414. An oral contract of assumption has been held to be inadmissible when there is a written contract covering the whole matter of the consideration. Mott v. American Trust Co., 124 Ark. 70, 186 S. W. 631.

65-66. Post, Sec. 646.

67. Ante, Sec. 622, note 38.

68. Middaugh v. Bachelder, 33

Fed. 706; Comstock v. Hitt, 37 111. 542; Ray v. Lobdell, 213 111. 389, 72 N. E. 1076; Bristol Sav. Bank v. Stiger, 86 Iowa, 344, 53 N. W. 265; Lamka v. Donnelly, 163 Iowa, 255, 143 N. W. 869; Heid v. Vreeland, 30 N. J. Eq. 591; Rockwell v. Blair Sav. Bank, 31 Neb. 128, 47 N. W. 641, as explained in Green v. Hall, 45 Neb. 89, 63 N. W. 119. But a recital in the instrument of conveyance of the full value of the property as the consideration for the conveyance has been regarded as having little or no weight in this rebetween the value of the property and the amount of the mortgage, that is, the estimated value of the "equity of redemption," was paid by the transferee in making the purchase is not sufficient to impose liability on the purchaser.69 That is almost invariably done, and does not involve any undertaking or assumption by the purchaser as to the mortgage debt. It is merely evidence, as before stated, of an agreement that the land shall be the primary fund for the payment of the mortgage debt.

In some of the cases which state that the transferee is liable in case there is a deduction of the amount of the mortgage from the agreed purchase price and the balance only paid to the vendor, it is said that from this circumstance the law "implies" a personal liability.70 This would appear to mean, not that there is a liability in quasi contract, apart from intention, actual or presumed, but rather that from such circumstance the law infers an intention to create a liability, that is, the law recognizes a rebuttable presumption that the parties so agreed. Evidence that there was no such agreement is no doubt admissible.71

That the mortgage is stated in the instrument of conveyance to constitute part of the consideration therefor has been decided not to impose a personal liability on the purchaser,72 especially when this statement does gard. Belmont v. Coman, 22 N. Y. 438; Lawrence v. Towle, 59 N. H. 28.

69. Rapp v. Stoner, 104 111. 618; Ray v. Lobdell, 213 111. 389, 72 N. E. 1076; Heid v. Vreeland, 30 N. J. Eq. 591; Bradley v. Hufferd, 138 Iowa, 611, 116 N. W. 814.