The question whether the remedy of a mortgagee against a grantee
of the mortgagor, to enforce an agreement of such grantee,
contained in the deed to him, to pay the mortgage debt is at law or
in equity is governed by the lex fori.
Page 135 U. S. 310
In the District of Columbia, a mortgagee can enforce an
agreement of the grantee of the mortgagor, contained in the deed to
him, to pay the mortgage debt by bill in equity only, although by
the law of the place where the land is and where the mortgage and
the subsequent deed were made, he might sue the grantee at law.
A statement of facts agreed by the parties, or case stated, in
an action at law, while it waives all questions of pleading or of
form of action, which might have been cured by amendment, does not
enable a court of law to assume the jurisdiction of a court of
This was an action at law by the administrator of the assignee
of a mortgage against the executrix of a purchaser of the equity of
redemption to recover so much of the mortgage debt as remained
unsatisfied after a foreclosure sale. The declaration set forth the
substance of the facts afterwards agreed by the parties. The
defendant pleaded: 1st. that the testator was never indebted as
alleged; 2d. the statute of limitations of three years. The
plaintiff joined issue on both pleas. The case was heard in the
Supreme Court of the District of Columbia in general term upon an
agreed statement of facts, in substance as follows
On July 7, 1868 at Brooklyn in the State of New York, Martin
Dixon executed and delivered to Charles Christmas a bond for the
payment of $14,000 in five years, with interest, and a mortgage of
land in Brooklyn to secure the payment of the bond.
On July 19, 1869 at Brooklyn, Dixon, by deed beginning with the
words "This indenture," but otherwise in the form of a deed poll,
and signed and sealed by him only, in consideration of $17,000 to
him paid, conveyed the land in fee to William W. W. Wood, "subject,
however, to the mortgage" aforesaid,
"which said mortgage, with the interest due and to grow due
thereon, the party of the second part hereby assumes and covenants
to pay, satisfy and discharge, the amount thereof forming a part of
the consideration herein expressed and having been deducted
Wood immediately entered upon and took possession of the land,
and afterwards made two payments of $2,000 each, one in 1873 and
the other on February 16, 1874, on account of the principal of the
mortgage debt, and also regularly paid the interest
Page 135 U. S. 311
thereon until March 14, 1874, when he conveyed the land to one
Bryan by a deed in which it was recited that the balance due on the
mortgage debt formed a part of the consideration and was deducted
from the purchase money, and by the terms of which Bryan assumed
and agreed to pay that balance. Wood made no other payment on the
The bond and mortgage were duly assigned to Frederick L.
Christmas, and held by him until his death in 1876, after which,
upon proceedings commenced in a court of competent jurisdiction in
New York by his administrator, appointed in that state, for the
foreclosure of the mortgage, a decree was made for the sale of the
land, and on December 10, 1877, after due notice to Wood, the land
was duly sold, and on January 5, 1878, the net amount of the
proceeds, being the sum of $4,566.61, was applied to the payment of
the mortgage debt, and on April 18, 1879, an order was made by a
court of competent jurisdiction in that state, giving leave to said
administrator to sue either Wood or Bryan for the deficiency of
The plaintiff on October 25, 1880, took out ancillary letters of
administration on the estate of Frederick L. Christmas in the
proper court of the District of Columbia, and on December 30, 1884,
brought this action against Wood's executrix, after demand and
refusal of payment, to recover the sum remaining due upon the
The statement of facts concluded as follows:
"It is further stipulated that if upon the said facts the
plaintiff is entitled to recover, then and in that case he is
entitled to judgment against the defendant for the said sum of
$6,865.63, being the balance remaining due after the application
thereto of the net proceeds of said sale, together with interest on
said balance from the said 5th day of January, 1878, assets in the
hands of the said executrix (the present defendant) sufficient to
pay all debts of said estate being hereby confessed; otherwise,
judgment for said defendant."
The court gave judgment for the defendant. 4 Mackey 538. The
plaintiff sued out this writ of error.
Page 135 U. S. 312
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the Court.
This action is brought by a mortgagee against the executrix of
the grantee named in, and who has accepted, a deed executed by the
mortgagor only, expressed to be "subject to the mortgage," and by
the terms of which the grantee "assumes and covenants to pay,
satisfy, and discharge" the mortgage debt. After issue joined on
the pleas of never indebted and the statute of limitations of three
years, the case was submitted, and judgment rendered for the
defendant upon an agreed statement of facts.
By the statute of limitations of Maryland of 1715, c. 23, §§ 2,
5, in force in the District of Columbia, all actions on simple
contracts must be brought within three years, and actions on
specialties may be brought within twelve years, after the cause of
action accrues. 1 Kilty's Statutes.
The decisions of the courts of New York, though proceeding upon
various and not always consistent reasons, clearly show that by the
law of that state (in which the land is situated, and the bond and
mortgage, as well as the subsequent deed from the mortgagor, were
executed and delivered), the mortgagee is entitled to maintain a
suit, either in equity or at law, against the grantee of the
mortgagor to enforce the payment of the mortgage debt. Halsey
9 Paige 446; King v. Whitely,
10 Paige 465;
Blyer v. Monholland,
2 Sandf.Ch. 478; Trotter v.
12 N.Y. 74; Burr v. Beers,
24 N.Y. 178;
Campbell v. Smith,
71 N.Y. 26; Pardee v. Treat,
82 N.Y. 385; Hand v. Kennedy,
83 N.Y. 140; Bowen v.
94 N.Y. 86. Assuming that the mortgagee has acquired by
the law of New York a right to enforce such an agreement against
Page 135 U. S. 313
grantee of the mortgagor, the form of his remedy, whether it
must be in covenant or in assumpsit at law or in equity, is
governed by the lex fori,
the law of the District of
Columbia, where the action was brought. Dixon v.
3 Cranch 319, 7
U. S. 324
; United States Bank v.
8 Pet. 361; Wilcox v.
13 Pet. 378; Le Roy v.
8 How. 451; Pritchard v. Norton,
106 U. S. 124
106 U. S. 130
106 U. S.
Much of the argument at the bar was devoted to the question
whether an agreement of the grantee, in a deed signed and sealed by
the grantor only, is, as has been held in New Jersey and New York,
in the nature of a covenant under seal, and consequently a
specialty, Finley v. Simpson,
22 N.J.Law 311; Crowell
v. St. Barnabas Hospital,
27 N.J.Eq. 650, 652; Atlantic
Dock Co. v. Leavitt,
54 N.Y. 35; Bowen v. Beck,
N.Y. 86, or, as held in other states, in the nature of an assumpsit
or implied contract, arising from the acceptance of the deed, and
consequently a simple contract, Locke v. Homer,
93, 102; Foster v. Atwater,
42 Conn. 244; Johnson v.
45 Vt. 419; Maule v. Weaver,
7 Penn.St. 329;
Hocking County Trustees v. Spencer,
7 Ohio, pt. 2, p.
But we do not find it necessary to pass upon that question,
since, by the law of the District of Columbia, whether the
agreement of the grantee is or is not considered as under seal, it
is an agreement made with the grantor only, and creates no direct
obligation to the mortgagee upon which the latter can sue at
If the agreement of the grantee is considered as under seal by
reason of the deed's being sealed by the grantor, it falls within
the settled rule of the common law, in force in the District of
Columbia, that no one can maintain an action at law on a contract
under seal to which he is not a party. Hendrick v.
Lindsay, 93 U. S. 143
93 U. S. 149
Southampton v. Brown,
6 B. & C. 718; Colliery Co.
3 H. & C. 677; Northampton v. Elwell,
4 Gray 81; Crowell v. St. Barnabas Hospital,
If the agreement of the grantee is considered as in the nature
of assumpsit, implied from his acceptance of the deed,
Page 135 U. S. 314
still, being made with the grantor only and for his benefit,
upon a consideration moving from him alone, there being no privity
of contract between the grantee and the mortgagee, and the latter
not having known of or assented to the agreement at the time it was
made, nor having since done or omitted any act on the faith of it,
it follows that, by the law as declared by this Court and
prevailing in the District of Columbia, the mortgagee cannot
maintain an action at law against the grantee. Keller v.
Ashford, 133 U. S. 610
133 U. S.
-622, and National Bank v. Grand Lodge,
98 U. S. 123
cited. The payments made by the grantee and accepted by the
mortgagee on account of the mortgage debt were made pursuant to the
grantee's contract with the mortgagor, and did not create, or
warrant to be inferred, a new contract between the grantee and the
mortgagee. Moreover, if the grantee's liability was in assumpsit
only, it was, in any view of the case, barred by the statute of
limitations in three years.
In the District of Columbia, the only remedy of the mortgagee
against the grantee was, as adjudged upon great consideration in
Keller v. Ashford,
above cited, by bill in equity, in
which he might avail himself of the right of the mortgagor against
his grantee, because in equity a creditor is entitled to avail
himself of a security which his debtor holds from a third person
for the payment of the debt.
In the Supreme Court of the District of Columbia, as in the
circuit courts of the United States, the jurisdiction in equity is
distinct from the jurisdiction at law, and equitable relief cannot
be granted in an action at law. Rev.Stat.D.C. §§ 760, 800;
Fenn v. Holme,
21 How. 481.
A statement of facts agreed by the parties, or, technically
speaking, a case stated, in an action at law doubtless waives all
questions of pleading or of form of action which might have been
cured by amendment, but it cannot enable a court of law to assume
the jurisdiction of a court of equity. Scudder v. Worster,
11 Cush. 573; McRae v. Locke,
114 Mass. 96; West
Roxbury v. Minot,
114 Mass. 546.
For these reasons, this action cannot be maintained, and the
judgment for the defendant must be