238 HARVARD LAW REVIEW, rule would apply, although the debt to the plaintiff be secured by mortgage of the debtor's real estate, and, in his subsequent con- veyance of such estate to the defendant the latter assumes and promises to pay the mortgage debt to the plaintiff as a part of the consideration of the conveyance. Mellen v. Whipple,^ is an important case in support of this position ;2 especially so in case of a promise by a second mortgagee to the mortgagor, which the first mortgagee seeks to enforce in an action at law in his own name.^ In such cases, as well as in cases of unsecured debts, the grantor of the equity has undoubtedly a right of action against the grantee, if he fail to pay the mortgage debt within a reasonable time after maturity;^ in which action the grantor can recover damages to the full amount of the mortgage debt, if overdue even if he has not yet paid it.^ If the mortgagee himself also has a right of action against the grantee of the estate, the latter may be liable to two actions by different parties, acting independently of each other; and after having paid the debt in full to his grantor, who has retained the money, the grantee is still in danger of being called upon by the mortgagee to pay again to him. Many cases, however, have enforced such contracts against the grantee in a suit by the mortgagee ; but some of them were brought distinctly in equity ; some were on the equity side of a court which combines both law and equity ; some rest upon the assumed ground that the estate conveyed to the defendant and the retention of part of the purchase price by him makes him the holder of a trust fund to which the creditor can resort in law, even McLaren v. Hutchinson, 18 Cal. 80 (1861) ; Clapp v. Lawton, 31 Conn. 95 (1862) ; Robertson v. Reed, 47 Pa. St. 115 (1864) ; Pipp v. Reynolds, 20 M ch. 88 (1870) ; Turner v. McCarty, 22 Mich. 265 (1871) ; Halsted v. Francis, 31 Mich. 112 (1875) ; Wheat T>. Rice, 97 N. Y. 296 (18S4) ; Edwards v. Clement, 81 Mich. 513 (rSgo) ; Mor- lill V. Lane, 136 Mass. 93 ; Borden v. Boardman, 157 Mass. 410 (1892). 1 I Gray, 317(1854).
- And see also Prentice v. Brimhall, 123 Mass. 293 (1877) ; Crowell z;. Hospital of
St. Barnabas, 27 N. J. Eq. 650 (1876) ; Biddell v. Brizzolana, 64 Cal. 354 (1883) ; Page V. Becker, 31 Mo 466 (1862); U. S. Mortgage Co. v. Hill, Mass. Dist. Ct. (1879); Gurnsey v. Rogers, 47 N. Y. 233 (1872). 3 Brown v. Stillman, 43 Minn. 126 (1890) ; Pardee v. Treat, 82 N. Y. 385 (1S80) ; Clark V. Howard, 74 Hun, 229- (1893) ; Vrooman v. Turner, 60 N. Y. 280 ; Lonl- lard V. Clyde, 122 N. Y. 498 (1890); Durnhurr v, Rau, 135 N. Y. 219 (1892).
- Braman v. Dowse, 12 Cush. 227 (1853); Pike v. Brown, 7 Cush. 133 (1851).
8 Locke V. Homer, 131 Mass. 93 (1881) ; Furnas v. Durgin, 119 Mass. 501 (1876), and cases cited on p. 507; Reed v. Paul, 131 Mass. 129 (1881} ; Williams v^ Fowle, 132 Mass. 385 (1882).
