concurring in the judgment of the court.
On the first question which is discussed by the court, I *191concur in the conclusion reached; but some of the language used in this case and in Swain v. Va. Bank, 151 Va. 655, 144 S. E. 645, seems to me too broad unless it be understood as limited to the facts of the case under consideration. See Jones Com. on Ev. (2 ed.) section 1482-section 1485, and section 1561-section 1570.
In concurring in the conclusion of the court that this action is not prematurely brought, I do so because I understand that these related propositions are the law in Virginia.
(1) Where the grantee from a mortgagor assumes the payment of the mortgage debt as a part of the consideration for the purchase price of the land, the rights of the mortgagee against the assuming grantee depend wholly upon the mortgagee’s right to be subrogated to the rights of the mortgagor against his grantee.
(2) As between the mortgagor and his grantee themselves the grantee becomes principally liable for the payment of the debt and the mortgagor secondarily hable therefor.
(3) The assuming grantee is entitled as against the mortgagee to any defense which the mortgagor has against the mortgagee in relation to the assumed debt, which is not in some way purely personal to the mortgagor.
(4) Except in so far as he is prevented by the doctrine of estoppel, the assuming grantee is entitled to make any defense against the mortgagee which he is entitled to make against the enforcement by his grantor (the mortgagor) of his promise to pay the mortgage debt.
(5) If the mortgagor, without having paid the mortgage debt, brings his action against his assuming grantee to recover for the breach of the grantee’s promise to pay, then the grantee may file, and maintain, a bill in chancery against the mortgagor and mortgagee to enjoin the prosecution of that action pending the settlement in that suit of all the rights of the parties. See 2 Jones on Mort. (7 ed.) section 769a: Scott v. Norris, 62 Okl. 292, 162 Pac. 1085.
*192If such a bill in chancery would not lie in Virginia, then as the question is one of first impression in this jurisdiction, I think the proper rule to adopt would be the rule followed in many jurisdictions that an action could not be brought by the mortgagor against his grantee until after he has paid the mortgage debt.