[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 628 The testimony tending to support the affirmative allegations of the answer is clear and convincing. Both of the defendants, as well as their son, testified that in order to avoid the necessary costs and expenses of a foreclosure suit, plaintiff offered to pay for a conveyance of the premises the sum of $350, surrender up and deliver said notes to defendants and to extinguish the mortgage indebtedness; that they accepted the offer and executed and delivered the deed to a third party for plaintiff in performance of said agreement and that plaintiff paid said party for defendants, the sum of $350, but failed to surrender up and deliver the notes or to satisfy the mortgage. While this testimony is contradicted by plaintiff, his testimony is not satisfactory, and wholly fails to explain why defendants should convey away a valuable *Page 630 property for the trifling sum of $350, and leave themselves liable for an indebtedness thereon aggregating more than $5,000. There is nothing in the record tending to show that the mortgage debt was not included in the purchase price, or which in any way rebuts the presumption that it was included in the purchase price under the rule stated in 41 C.J., p. 716, as follows:
"It is presumed that a purchaser subject to a mortgage bought the land at its value, less the amount of indebtedness secured by the mortgage. So where a conveyance subject to a mortgage states a nominal consideration, the mortgage debt will be presumed to have been included in the purchase price. Such a presumption does not arise where the purchaser paid the full amount agreed upon for a clear title."
Plaintiff contends that by the terms of the warranty contained in the deed defendants are estopped to assert any defense to plaintiff's enforcement of the mortgage indebtedness. Under the facts proven, this contention cannot be sustained. If plaintiff had complied with his agreement there would have been no notes or mortgage to stand in the way of the covenant contained in the deed. That covenant was entered into in reliance upon plaintiff's promise to surrender up and cancel the notes and mortgage. Having failed to perform, he brought about the very condition about which he now complains.
Equity will not lend its aid to relieve a party from the consequences of his own wrongdoing. The contention implies that plaintiff is the owner of the premises, for otherwise he could have no interest in the covenant. If plaintiff, although the title is nominally in the name of the son, is the real owner of the premises, the transaction would bring the case *Page 631 within the general principle that where the mortgagee purchases the equity of redemption, he thereby extinguishes his debt and mortgage, unless he has been induced by fraud to give up his debt, or it is necessary for his protection, that the two estates should be kept distinct. Nothing proven brings the case within either of these two exceptions to the general rule. While if plaintiff is not the owner of the premises, then he is a stranger to the deed, and as to him the covenant is res inter alios acta and there can be no estoppel, for as a general rule only the parties to a deed and those in privity with them can be bound by or take advantage of the estoppel created by a deed. Hence it was error for the court to award a judgment in favor of plaintiff for the amount of the notes.
It was also error for the court to grant defendants the right of subrogation. The whole evidence showed that defendants had conveyed the property subject to the mortgage, and that the deed contained no recital whereby the grantee assumed and promised to pay the mortgage indebtedness. If the grantee had assumed and agreed to pay the mortgage indebtedness, and if that indebtedness had not been extinguished by the conveyance, then upon the original mortgagors having been compelled to pay the mortgage indebtedness, they would have been entitled to be subrogated to the rights of the mortgagee, because in such case, the grantee by his contract, having assumed and agreed to pay the mortgage indebtedness, would have become primarily liable for the payment of the debt, and as between him and his grantors, the original mortgagors, he would have been the principal and they the sureties for its payment, and hence they would be only secondarily liable: *Page 632 Windle v. Hughes, 40 Or. 1 (65 P. 1058); Hoffman v.Habighorst, 49 Or. 379, 391 (89 P. 952, 91 P. 20); Miles v. Bowers, 49 Or. 429 (90 P. 905); 3 Pom. Eq. Juris. (3 ed.), § 1207. But no such condition existed here. There was no assumption upon the part of the grantee of the mortgage indebtedness, and if anyone was liable for the payment of the notes and mortgage, it was the defendants who executed them, and in paying them they would have simply been paying their own debt, for which they and they alone were primarily liable.
There are instances in which the law permits a creditor to waive his surety and sue for the recovery of his debt, but this is not one. If these notes and the mortgage had been valid and subsisting obligations, defendants having conveyed the property subject to the mortgage, would have been entitled to have the mortgage foreclosed and the land sold and the proceeds applied in payment of the indebtedness before any personal judgment could be taken against them.
For the reasons stated, the decree of the Circuit Court will be reversed and a decree directing the cancellation of the notes and of the mortgage will be here entered.
REVERSED AND DECREE ENTERED.
BURNETT, C.J., and COSHOW and McBRIDE, JJ., concur. *Page 633