Page:Federal Reporter, 1st Series, Volume 3.djvu/795

 ( 788 FEDBRAIi BBPOBTEB. �facts more direotly within ehe rule of the cases adjuSicated in. New Jersey and Massachusetts, which hold that the ha- bility of the grantee of the mortgagor, who has assumed the mortgage debt, can l»e enforced in equity by an application of the principle of equitable subrogation. From these various considerations I have, therefore, no difSculty in reaching the conclusion that the court still has jurisdiction to pass upon the question of Drury's liability, and to render a personal decree against him if justified by the law and facts. �As to the second question, it appears from allegations in the bill which are not denied by the answer, and are admitted, that the complainant purchased the notes secured by this mortgage for a valuable consideration, before due, and after the deed from Daggett to Drury had been made; and, in November, 1876, when thia transaction by the well-settled law of this state, where this transaction took place, and ail the parties resided, the assumption of this indebtedness by Drury enured to the beneflt of the mortgagee, and could be enforced by him either at law or in equity. The mortgagor in this case was the holder of these notes ; that is, these notes were given to be negotiable, made payable to the order of the mortgagor, and the mortgage passed with the notes as an incident then free of the equities between the original parties. �The case of Carpenter v. Logan, 16 Wall. 27, sustains fuUy the doctrine which I have laid down here, that the parties to a mortgage cannot set up a mistake as against the purchaser of the notes and the holder of the mortgage debt. The same doctrine was affirmed in the case of the New Orleans Canal dt Barge Co. v. Montgomery, 95 U. S. 16. The court must therefore presume that when the complainant purchased these notes she took them .vith knowledge of the fact that the defendant Drury had assumed and agreed to pay them, and that the obligation could be enforced by the holder of the notes. The defendant Drury had by this deed made himself, apparently, at least, a quasi party to the notes. He had agreed to assume and pay these notes, and thereby had given them, the court must presume, currency in the market. The mortgagee — that is, the hona fide holder of these notes — is, to ����