Burke v. Gummey

The opinion of the court was delivered, by

Strong, J.

This ease is ruled by Campbell v. Shrum, 3 Watts 60, as well as by the principles laid down in Blank v. German, 5 W. & S. 36, and in Woodward’s Appeal, 2 Wright 322. We have no cases that are not reconcileable with the doctrine'that one who purchases expressly subject to an encumbrance as between the vendor and himself makes the debt his own, and assumes to protect the vendor. Such assumption is in part or in whole the consideration of the conveyance to him. It would be strange were it not so. In this case Gummey sold to Burke for $1000 a lot subject to a mortgage for $1000, given by the vendor. Burke obtained the lot for $1000 less, because he took it expressly subject to the mortgage. If, now, he can cast the payment of the mortgage upon his vendor, he does not take the lot encumbered, for he compels the vendor to take off the encumbrance, and indirectly recovers the consideration which he has paid. It is manifest such was not the understanding of the parties. It is a rational deduction, from their language, and from the transaction, that the vendee undertook to protect the vendor against the debt that was secured by mortgage on the premises.

Clearly, the promise to Gummey to pay a debt due by Gummey, or to protect him against it, was not within the Statute of Frauds.

The judgment is affirmed.