Enos v. SanGer

• Decision Date: 30 April 1897
• Citation: 70 N.W. 1069,96 Wis. 150
• Parties: ENOS ET AL. v. SANGER ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 150

70 N.W. 1069

ENOS ET AL.

v.SANGER ET AL.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Ella Enos and others against Casper M. Sanger and others to foreclose a real-estate mortgage. From that part of a judgment refusing to provide for a deficiency judgment against certain defendants, plaintiffs appeal. Reversed.

On the 29th day of April, 1893, Casper M. Sanger executed to plaintiffs a mortgage uponcertain real estate to secure the payment of $22,500 at the times and with the interest therein provided for. On the 25th day of July, 1893, the mortgagor, by deed with full covenants except as to such mortgage, conveyed such real estate to Emil and Alfred T. Sanger. On the 19th day of August, 1893, the last-named grantees, by a deed with full covenants except as to the aforesaid mortgage, conveyed such real estate to the C. M. Sanger Sons Company. Such deed contained a clause in the usual form, to the effect that the grantee, C. M. Sanger Sons Company, assumed and agreed to pay the said mortgage debt. Default was made in the payment of interest accruing on such debt, and thereupon this action was brought to foreclose such mortgage. The complaint contained the usual prayer for relief to the effect that the decree should provide for personal judgment against all parties personally liable for the mortgage debt in case of a failure to realize a sufficient sum from a sale of the property to satisfy such debt, with interest and costs. All the facts were found as above set forth. The trial court held that the C. M. Sanger Sons Company was not personally liable for the mortgage debt, and thereupon judgment was entered as prayed for in the complaint, except in respect to providing for a deficiency judgment against the C. M. Sanger Sons Company. Plaintiff thereupon appealed from that part of the judgment refusing to provide for such a deficiency judgment.

Miller, Noyes, Miller & Wald, for appellants.

Nath, Pereles & Sons and Charles F. Hunter, for respondents.

MARSHALL, J. (after stating the facts).

The decisions of the various courts are by no means uniform, either in respect to the binding effect of a covenant by a grantee of land to pay the consideration therefor to a third person, or the ground upon which the obligation rests, if sustained. It is useless to review and try to harmonize the various adjudications. In fact, it is difficult to find a line upon which they can be harmonized respecting the ground of the liability. In this state the liability rests upon the doctrine that where one person, for a valuable consideration, engages with another to do some act for the benefit of a third person, the latter may maintain an action against the promisor for the breach of the agreement. Such doctrine is the settled law in this state. Bassett v. Hughes, 43 Wis. 319;Hoile v. Bailey, 58 Wis. 434, 17 N. W. 322;Grant v. Lock Co., 77 Wis. 72, 45 N. W. 951;Kollock v. Parcher, 52 Wis. 393, 9 N. W. 67; and many other cases that might be cited. All that is required to render such rule applicable is for the obligor, for a sufficient consideration to support the promise, to agree to do some act for the benefit of a third person. No question of subrogation or novation is involved. Such third person, whether sustaining any relation to the person with whom the agreement is made or not, or to the person from whom the consideration moves, may adopt such promise made for his benefit, and thereby bring himself into privity with the obligor, and enforce the...