It seems to me, while concurring in the result, that it is not necessary to resort to the doctrine of novation in order to sustain the plaintiff's suit. The authorities cited by the plaintiff's counsel amply sustain his right to recover. *Page 173
It is the simple case of one man's placing money in the hands of another for the use of a third person, and to be paid to him. It is a provision for the benefit of the third person, and which he may enforce. And in this case the deed contains the condition, and the purchaser, by acceptance, promises the seller that he will make the payment.
In some classes of cases, where money is by one man placed in the hands of another, and this other promises the first-named to pay it, or do something for the benefit of a third, the fulfilment of the promise may be interfered with by revocation before the third person has accepted or acted on it. That objection does not lie here. The vendor could not recall the money from the vendee.
And if the vendee performs his contract and pays the mortgage, that is a full protection to any claim on him by the vendor.
It is, in fact, a part of the consideration money left in the vendee's hands. It is, so far as the vendee is concerned, the same as if the old mortgage had been discharged at the time of sale and he had himself given a new note or bond and mortgage for the same sum to the holder of the old one.
See the recent case of Twichell v. Mears, in the United States Circuit Court, Northern District of Illinois, 6 Reporter, 40; and see Cumberland v. Codrington, 3 Johns. Ch. 229;Parkinson v. Sherman, 74 N.Y. 88.
Judgment for plaintiff.