Page:Federal Reporter, 1st Series, Volume 3.djvu/794

 HATDEN P. DRUSY. 787 �award a decree of forecloBure and sell the mortgaged prop- erty, bat could, under the ninety-seoond rule in equity, award a Personal judgment against whoever was liable for any deficiency after the application of the» proceeds of the sale ; and, it seems quite clear to me, it does not lose that juris- diction by the fact that the subject-matter of the mortgage has been sold by another decree to satisfy a prior enoumbrance. The court can now, if it were deemed necessary, enter a decree of foreclosure and direct a sale of the mortgaged premises, and, after a sale for a nominal amount, could give a Personal judgment for the deficiency; but, for my part, I do not deem it necessary to go through an empty form of foreclosure and sale to ascertain what the court knows judicially already, that the mortgaged property will fumish no fund to satisfy this mortgage debt. �There is, however, another aspect of this cause upon whieh the jurisdiction of the court to enter a deoree on the merits of this cause may be retained. The complainant seeks by his bill to make a remote grantee of the mortgagor personally liable for this indebtedness. In a number of cases like this, where the assnmption and agreement to pay the mortgage debt were declared to be a part of the purchase money or consideration for the deed of the mortgaged premises, the courts have held the grantee in the deed liable, on the ground that he, by his deed, acknowledged himself to hold so much money for the use of the mortgagee. And in those cases, it has been said, a suit at law could bemaintained by the mort- gagee against the grantee of the mortgagor. Burr v. Beera, 24 N. Y. 187; Ross v. Kenneson, 38 Mo. 396; Comstock v. Hitt, 37 N. Y. 456; Thompson v. Thompson 4 Ohio St. 333; Sanford v. Hays, 19 Com. 594. But in this case there is no admission that the assumption of the mortgage debt is a part of the consideration. The recital of the deed to Drury is to the effect that he assumes and agrees to pay this enoum- brance. He does not admit nor declare that a part of the purchase money was to be paid by him (Drury) in payment of this mortgage indebtedness, as was the contract in many of the cases I have cited, so that this case is brought by its ����