Osborne v. Cabell

Citations

• 77 Va. 462
• 1883 Va. LEXIS 78

Syllabus

<p>1. Mortgagor—Purchaser of mortgaged premises—Subrogation—Case at bar.—In i860, C. borrowed of L. $2,853.08, and executed bond secured by trust deed on lot in R. In January, 1862, C. conveyed lot to B. for certain sum cash, and his assuming the trust debt. In November, 1862, B. conveyed lot to H. for certain sum cash, and his assuming the trust debt. In 1865, agreement was executed between H. and O. for adjustment of all claims between them, and in pursuance thereof H. conveyed lot to O. for $1,000, and his promise to pay the trust debt. H. failed to perform his part of the agreement, and continued indebted to O. in the sum of $3,000. The trust debt remaining unpaid, L. sold lot for $1,566.65 net, which was credited thereon, leaving balance unpaid of $1,4.02.25, as of 4th September, 1867, which C. pays. In 1875, C. institutes chancery suit against B., H. and O. At hearing, circuit court decreed against O. for that balance. On appeal—</p> <p>Held:</p> <p>1. The failure of H. to perform his agreement with O., absolved O. from his promise to pay the trust debt.</p> <p>2. C. stands in H.’s shoes, and is substituted to the rights and remedies of H. against O., and nothing more. But as H. failed to perform his agreement with O., and on that account remained indebted to O. in the sum of $3,000, H. has no rights and remedies against O., and therefore C. has none.</p> <p>3. As against B., C. has a direct claim, founded on B.’s covenant to him to pay the trust debt.</p> <p>4. As against H., C. is substituted to B.’s rights and remedies, which would appear to be complete.</p> <p>5. C.’s claim against O. did not become a personal one, because there was no consideration moving to O. from H.</p> <p>2. Idem—Idem—Idem—The principle.—The ground whereon purchaser of mortgaged premises, having purchased subject to a mortgage for which his grantor was liable, and assumed payment as part of the price, is held personally liable to the creditor in suit to foreclose, is that inter sese,