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Page:Harvard Law Review Volume 1.djvu/235

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Thus, the new rule was early applied to the case of the assumption of a mortgage by an assignee from the owner of the equity of redemption, who had made the mortgage.[1]

But when it was attempted to apply the doctrine to the case of an assumption by the assignee of an owner of the equity, who was himself not liable for the payment of the mortgage, the attempt failed. “The Courts are not inclined to extend the doctrine of Lawrence v. Fox. . . . Judges have differed as to the principle upon which Lawrence v. Fox and kindred cases rest.”[2]

So, too, where the owner of the equity of redemption makes a second mortgage, and this mortgagee assumes the payment of the first mortgage, the first mortgagee cannot avail himself of that assumption. “In Burr v. Beers the amount due upon the mortgage was reserved out of the purchase money, and left in the hands of the purchaser, upon his agreement with the vendor to apply it to the payment of the mortgage debt.”[3]

The necessities of the Court of Appeals develop further distinctions. A retiring partner protects himself against the possible default of a copartner, on the latter’s promise to assume the debts of the copartnership, by taking the guarantee of a third person. Held, not available by creditors of the copartnership. Merrill v. Green, 55 N.Y. 270, all in spite of Claflin v. Ostrom, 54 N.Y. 581. So, too, in the same volume of reports we have the following discrimination:—

Where a new partner assumes certain debts, unliquidated by the old partners, he is liable to these creditors of the former co-partnership.[4]

But where the assets of a firm were transferred to A upon his promise to pay the firm’s debts, one of which was a promissory note negotiated to plaintiff before maturity, it was held, that A, who was sued upon his promise to pay this note, could set off a claim owed to him by the previous holder of the note. “It would be a great extension of the doctrine of Lawrence v. Fox to hold that a promise to a debtor to pay his debt was a direct undertaking of the promisor with each of the persons successively who should acquire the interest of the original creditor, and this construction is not justified when there are no special words indicating that intention.”[5]

  1. Burr v. Beers, 24 N.Y. 178.
  2. Freeman v. Turner, 69 N.Y. 280.
  3. Garnsey v. Rogers, 47 N.Y. 233.
  4. Arnold v. Nichols, 64 N.Y. 117.
  5. Barlow v. Myers, 64 N.Y. 41.