Foster, 55 Me. 508; Hopper v. Smyser, 90 Md. 363, 45 Atl. 206; Brown v. South Boston Sav. Bank, 148 Mass. 300, 19 N. E. 382; Fuller v. Devolld, 144 Mo. App. 93, 128 S. W. 1011; Magie v. Reynolds, 51 N. J. Eq. 113, 26 Atl. 150; Jackson v. Hoffman, 9 Cow. (N. Y.) 271; Belmont v. Coman, 22 N. Y. 438,

78 Am. Dec. 213.

27. Bennett v. Keehn, 67 Wis. 154, 29 N. W. 207, 30 N. W. 112; Calkins v. Copley, 29 Minn. 471, 13 N. W. 904.

28. Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91.

29. See cases cited post, Sec. 625, notes 37-41.

The right of a transferee who does not assume the debt, and who does not take subject to the mortgage, to assert a primary liability on the part of his predecessor in title, is apparently independent of the origin of such predecessor's personal liability, that is, upon whether he was the original debtor, or merely assumed the debt. In both cases the transferee is a stranger to the contract, but this has no bearing upon the latter's right to assert that the debt is such predecessor's debt, and should therefore be paid by him in exoneration of the land.

In case the mortgaged property is sold under execution, the transferee, it has been decided, is at least presumed to take subject to the mortgage.33 It seems questionable, indeed, whether by any arrangement between the purchaser at such sale and the sheriff, the property could be made merely secondarily liable, if not otherwise so, since this would deprive the execution debtor, without his consent, of the possibility of Inning the mortgage debt paid from the land.34 Even

30-31. Boice v. Coffeen, 158 Iowa, 705, 138 N. W. 857; Jurnel v. Jurnel, 7 Paige (N. Y.) 591.

32. Merritt v. Byers, 46 Minn. 74, 48 N. W. 417, is not in accord with the view of the text. In that case the court appears to regard the question of primary and secondary liability as dependent exclusively on whether there are covenants of title of which the transferee can avail himself.

33. Hanger v. State, 27 Ark. 673; Funk v. Reynolds, 33 111. 481; Bunch v. Grave, 11 Ind. 351, 12 N. E. 514; Myers v. Jones, 61 Kan. 191, 59 Pac. 275; Rogers v. Hede-mark, 70 Minn. 441, 73 N. W. 252; Heyer v. Pruyn, 7 Paige (N. Y.) 465; McKinstry v. Curtis, 10 Paige (N. Y.) 503; Steele v. Walter, 204 Pa. 257, 53 Atl. 1097.

34. See Erlinger v. Boul, 7 111. App. 40.

3 R. P.- 14 though the sale is made without reference to the existence of the mortgage, and the purchaser pays full value for the property, he should bear the loss. If, however, the execution debtor held the land subject only to a secondary liability, the primary liability being upon the mortgagor or another personalty, the purchaser at execution sale would also, it seems, take subject merely to such secondary liability. There is no reason why the execution sale, whatever its terms, should operate to relieve such other person of the primary liability.

The effect of the transfer of the land subject to the mortgage being to make the land in the hands of the transferee the primary fund, as between him and the transferor, for the payment of the mortgage debt, the transferee cannot pay the debt and, on the theory of subrogation to the mortgagee's rights, or by reason of an actual assignment thereof, assert a personal claim against the mortgagor for the debt.35 The effect of his payment of the debt is to extinguish the mortgage and the debt as against the mortgagor.36 On the other hand, the mortgagor is, on paying the debt, subrogated to the rights of the mortgagee as against the land.37

That one takes a transfer of the land subject to the mortgage does not render him personally liable for the mortgage debt,38 but he is, according to the English and

35. Iowa Loan & Trust Co. v. Mowery, 67 Iowa, 113, 24 N. W. 747; Northwestern Nat. Bank v. Stone, 97 Iowa, 183, 66 N. W. 91; Landau v. Cottrill, 159 Mo. 308, 60 S. W. 64; In re Wisner's Estate, 20 Mich. 442; Bennett v. Keehn, 67 Wis. 154, 29 N. W. 207, 30 N. W. 112; Gayle v. Wilson, 30 Gratt. (Va.) 166.

36. Post, Sec. 644.

37. Kinnear v. Lowell, 34 Me.

299; Marsh v. Pike, 10 Paige (N. Y.) 595; Johnson v. Zink, 51 N. Y. 333.

38. Elliott v. Sackett, 108 U. S. 132, 27 L. Ed. 678; Shepherd v. May, 115 U. S. 505, 29 L. Ed. 456; Hibernia Saving & Loan Society v. Dickinson, 167 Cal. 616, 140 Pac. 265; McArthur v. Goodwin, 173 Cal. 499, 160 Pac. 679; Lloyd v. Lowe, - Colo. -, 165 Pac. 609; Post v. Tradesmen's Bank, 28

Canadian cases, ordinarily under a personal obligation to indemnify the mortgagor, his transferor, in case the latter is compelled actually to pay the debt, irrespective of the value of the land.39 There appears to be some question as to the character of this obligation, whether it can properly be referred to as a case of implied contract,40 but, however this may be, its existence may be negatived in any particular case by evidence of a contrary agreement.41 Such a personal obligation to indemnify on the part of the grantee may be regarded as established in Pennsylvania,42 and it has been recognized with more or less positiveness in two or three other states.43 In most of the states, however, no such personal obligation by reason of a "subject" clause in the conveyance has been recognized, and, it is submitted, there should properly be no such obligation. If the grantee agrees to pay the mortgage debt, he is, as is hereafter more fully stated, personally liable therefor.44 If he does not so agree, he is, as is stated above, not personally liable for the debt. But the English and Pennsylvania decisions say, in effect, that though, not having agreed to pay the debt, he is not personally liable therefor, he is personally liable to the mortgagor if the latter pays the debt, to the extent necessary to indemnify the latter. There is, in result, but little difference between a personal obligation to pay the debt, and a personal obligation to indemnify another person who may be compelled by the creditor to pay it. The mortgagor who transfers the mortgaged land is, by his right of subrogation,45 protected to the extent of the value of the land, and that is as far as his grantee intended to protect him. The English doctrine in this regard may probably have become established at a time when the theory of subrogation had not been sufficiently developed to accord to the mortgagor paying the debt any protection whatsoever, while the establishment of the doctrine in Pennsylvania appears to have been the result of comparatively early decisions in that state,46 in which the conveyance was not in terms subject to the mortgage, but subject to "the payment" of the mortgage, a form of expression which might well be regarded as involving an agreement to pay.47

Conn. 420; Lippitt v. Thames Loan & Trust Co., 88 Conn. 185, 90 Atl. 369; Dunn v. Rodgers, 43 111. 260; Dean v. Walker, 107 111. 540, 47 Am. Rep. 467; Robinson Bank v. Miller, 153 111. 244, 27 L. R. A. 449, 46 Am. St. Rep. 883, 38 N. E. 1078; Gregory v. Arms, 48 Ind. App. 562, 96 N. E. 196; Green v. Turner, 38 Iowa, 112; Lamka v. Donnelly, 163 Iowa. 255; 143 N. W. 869; Fiske v. Tolman, 124 Mass. 254, 26 Am. Rep. 659: Green v. Hall, 45 Neb. 89, 63 N. W. 119; Woodbury v. Swan, 58 N. H. 380; Loudenslager v. Woodbury Heights Land Co., 64 N. J. L. 405, 45 Atl. 784; Bennett v. Bates, 94 N. Y. 354; Belmont v. Coman, 22 N. Y. 438, 78 Am. Dec. 213; Hammond v. Wall, - Utah, -, 171 Pac. 148; Chaffee v. Hawkins, 89 Wash. 130, 154 Pac. 143, 157 Pac. 35; Tanguay v. Felt-housen, 45 Wis. 30. But the contrary appears to be assumed in Hatcher v. Kinkaid, 48 Okla. 163, 150 Pac. 182.

39. Waring v. Ward, 7 Ves. 332, 337; Adair v. Carden (1892), 29 L R. Ir. 469; Mills v. United Counties Bank, Ltd. (1912), 1 Ch. 231; Williston v. Lawson, 19 Can. Sup. 673; Fraser v. Fairbanks, 23 Can. Sup. 79; Maloney v. Campbell, 28 Can. Sup. 228; McMichael v. Wilkie, 18 Ont. App. 464.

40. See remarks of Farwell, J., in Mills v. United Counties Bank (1912), 1 Ch. 231, and comment thereon in 28 Law Quart. Rev. 122.

41. Mills v. United Counties Bank (1912), 1 Ch. 231.

42. Moore's Appeal, 88 Pa. St. 450, 32 Am. Rep. 469; In re Stanhope's Estate, 184 Pa. St. 414, 39 Atl. 217; In re May's Estate, 218 Pa. 64, 67 Atl. 120; Faulkner v. McHenry, 235 Pa. 298. 83 Atl. 827.

43. Townsend v. Ward, 27 Conn. 610; Thompson v. Thompson, 4 Ohio St. 33; Lamka v. Donelly, 163 Iowa, 255, 143 N. W. 869; Sheppard v. Berkshire Life Ins. Co., 161 111. App. 467.

While a "subject" clause, occurring in an absolute conveyance of the mortgaged land, has, as has been indicated, important effects in determining the obliga44. Post, Sec. 623.

45. Post, Sec. 646.

46. See Campbell v. Shrum, 3 Watts (Pa.) 60; Blank v. German, 5 W. & S. (Pa.) 36; Woodward's Appeal, 38 Pa. St. 322; Burke v. Gummey, 49 Pa. St. 518.

47. A right of indemnity apart from express contract is negatived in Middaugh v. Bachelder, 33 Fed. 706; Trotter v. Hughes, 12 N. Y. 74, 62 Am. Dec. 137 (semble); Tichenor v. Dodd, 4 N. J. Eq. 454; Smith v. Tinslow, 84 N. Y. 660. See Editorial note, 11 Columbia Law Rev. 688.

Tion to satisfy the mortgage debt, such a clause occurring in a subsequent mortgage is, it is conceived, ordinarily inoperative except as showing notice of the prior mortgage.48 It could, at most, indicate merely that, as between the parties to the second mortgage, the mortgagee assents to the satisfaction of the entire first mortgage debt from the property, in relief of the mortgagor, and such an agreement, while possible, is so unusual that it should be made to appear by something other than the mere statement that the second mortgage is subject to the first. In the case of an absolute transfer subject to the mortgage, the transferee receives a consideration, ordinarily a reduction in the purchase price to the extent of the mortgage debt, and it would be inequitable for him to assert a primary personal liability on the part of the transferor, but in the case of a mortgage in terms subject to a prior mortgage, the mortgagee receives no consideration by reason of the existence of the prior mortgage, and there is no lack of equity on his part in asserting that, as between them, the debt should be regarded as the debt of the mortgagor rather than of. the land.