Fitzgerald v. Barker

Assumption of Another’s Debt by Acceptance of Deed with Recital If a purchaser of land accepts and holds under a conveyance which contains a clause reciting that he has assumed and agrees to pay a note secured by a subsisting mortgage on.the land, he thereby subjects himself to a liability which the holder of the note may enforce by a personal action. (Heim v. Vogel, 69 Mo. 529.)

Appeal from St. Louis Court of Appeals. There was no consideration moving from plaintiff to defendant to support the promise; Luge v. Becker, 31 Mo. 466 ; Manny v. Frasier, 27 Mo. 419 ; and no privity of contract between them. The promise of Barker to assume and pay the deed of trust notes, which were outstanding as an incumbrance upon the property, was solely for the benefit of Thomas. It was not the intention of the parties by their contract that Fitzgerald should receive any additional security for his debt, but that Barker should indemnify and save Thomas harmless as to such debt. Ham v. Hill, 29 Mo. 278 ; Mellon v. Whipple, 1 Gray 317; Pike v. Brown, 7 Cush. 133; National Bank v. Grand Lodge, 98 U. S. 123; Brannan v. Dowse, 12 Cush. 228; Thomas v. Durgin, 119 Mass. 500; Foster v. Aticater, 42 Conn. 250 ; Beard v. Morris, 12 Serg. & R. 16; Kearney v. Tanner, 17 Serg. & R. 94; Campbell v. Shrum, 3 Watts 60; Burke v. Gunnerly, 49 Pa. St. 518; Woods v. Huntingford, 3 Ves. 130; Tweddell v. Tweddell, 2 Bro. C. C. 101. An action lies on a promise made by the defendant, upon a valid consideration, to a third party for the benefit of.the plaintiff, although plaintiff was not privy to the consideration ; and such promise is to be deemed made to the plaintiff, if adopted by him, though he was not a party to or cognizant of it when made. Meyer v. Lowell, 44 Mo. 328; Flanagan v. Hulchinson, 47 Mo. 237; Rogers v. Gosnell, 51 Mo. 466; s. e., 58 Mo. 589 ; Schuster v. K. C., St. Jo. & C. B. R. R. Co., 60 Mo. 290; Bank v. Benoist, 10 Mo. 519; Cress v. Blodgett, 64 Mo. 449 ; Robbins v. Ayres, 10 Mo. 538; Amoneit v. Montague, 63 Mo. 201; Schemerhorn v. Vanderheyden, 1 Johns. 139 ; Ellwood v. Monk, 5 Wend. 235 ; Farley v. Cleveland, 4 Cow. 432; Lawrence v. Fox, 20 N. Y. 268; Coster v. Albany, 43 N. Y. 399; Van Schaick v. Third Am. R. R., 38 N. Y. 346; Ricard v. Sanderson, 41 N. Y. 179; Barker v. Bradley, 42 N. Y. 316; Belmont v. Coman, 22 N. Y. 438; Claflin. v. Ostrom, 54 N. Y. 581; Cooley v. Howe Mach. Co., 53 N. Y. 620 ; Glen v. Hope Mut. Life Ins. Co., 56 N. Y. 379; Felton v. Dickinson, 10 Mass. 287; Arnold v. Lyman, 17 Mass. 400; Hall v. Marston, 17 Mass. 575; Carnegie v. Morrison, 2 Met. 381; Dutton v. Pool, 2 Lovinz 212; Kimball v. Noyes, 17 Wis. 695; Sanders v. Clason, 13 Minn. 379; Jordan v. White, 20 Minn. 91; Cross v. Truesdale, 28 Ind. 44; Decol v. McIntosh, 23 Ind. 529; Day v. Patterson, 18 Ind. 114; Allen v. Thomas, 3 Met. (Ky.) 198; Wiggans v. McDonald, 18 Cal. 126 ; Miller v. Florer, 15 Ohio St. 148 ; In re Downing, 1 Dillon 83 ; 1 Parsons Cont., (5th Ed.) 467, 468 ; 2 Green!oaf Ev., § 109 ; Pomeroy on Rom. and Rem. Rights, § 139. The doctrine of the above cases is applicable to an assumption of a mortgage debt. Slebbins v. Hull, 29 Barb. 524; Burr v. Beers, 24 N. Y. 178; Thorp v. Keokuk Coal Co., 48 N. Y. 253 ; Halsey v. Reed, 9 Paige 446: Marsh v. Pike, 10 Paige 595 ; Cornell v. Prescott, 2 Barb. 16 ; Blyer v. Monholland, 2 Sand. Ch. 478; Cherry v. Blonro, 2 Barb. Ch. 618; Jumelv. Jumel, 7 Paige 594; Ferris v. Crawford, 2 Denio 595; Tillotson v. Boyd, 4 Sand. 516; Murray v. Smith, 1 Duer 412; Trotter v. Hughes, 7 Kern. 74; Jordan v. White, 20 Minn. 91.