Taylor v. Mayer , 93 Pa. 42 ( 1880 )

Mr. Justice Paxson

delivered the opinion of the court, March 1st 1880.

The “ under and subject” question has been fully discussed in recent cases. See Moore’s Appeal, 7 Norris 450; Samuel v Peyton, Id. 465; Thomas v. Wiltbank, 6 W. N. C. 474, 476, 477, and Merriman v. Moore et al., 9 Norris 78. It is sufficient to apply the principles there decided to the facts of this case.

The sixth assignment raises the only questions that need to be considered. The learned judge instructed the jury in his answer to the plaintiff’s first point: “ That if the jury believe that the defendant. Taylor accepted a conveyance of the premises in question which expressly stated that it was made under and subject to the mortgage-debt, which was secured by the mortgage in question, and also gave to the plaintiff Mayer a certificate in which he declared that he had no defence or set-off to make to the bond or mortgage aforesaid, and that he was then seised in fee-simple of and in the premises described, and granted in and by the said indenture of mortgage, their verdict must be for the plaintiff.”

The most that can be claimed for the words “ under and subject” in the conveyance is, that as between the parties it creates a covenant of indemnity to the grantor on the part of the grantee. This is the precise ruling in Merriman v. Moore and the other cases cited. It creates no liability to the mortgagee, and does not authorize a suit in his own name. But it was urged that the certificate of no set-off given by the grantee imposes a personal liability on his part to the mortgagee, and brings the case within that class wherein the mortgagee may sue as upon a promise made for his benefit. We do not so regard it. The certificate of Taylor, the owner of the premises bound by the mortgage,'that he had no defence to said mortgage, falls very far short of imposing a personal liability. The further statement in the certificate that Taylor was seised in fee simple of the mortgaged premises does not help the matter. It was merely saying, I am the owner of the mortgaged premises; I have taken the same under and subject to the mortgage, and I have no defence to make to its payment if you see proper to enforce it. Surely a man so situated may say that as owner of the premises he has no defence to the mortgage without subjecting himself to a personal liability. There is nothing upon the face of the paper to show that any such liability was in the contemplation of the parties. Had there been it should have been expressed in language free from ambiguity.

The judgment is reversed and a venire facias de novo awarded.