delivered the opinion of the court :
The facts of this case, as shown by the record, are briefly these : Heman Baldwin being the owner of certain lots of ground in the city of LaSalle, on the 13th of July, 1857, executed and delivered to Mrs. Ann C. Wilson a bond for a deed of the same, on certain money considerations thereafter fWwnftnr to be paid, for which he received the notes of Mrs. Wilson. The first note was duly paid, and two hundred dollars paid on the third note. On the 15th of March, 1860, Wilson being in default, Baldwin conveyed the lots to Messrs. Dean & Blanchard, and assigned the over-due notes of Wilson to them. Dean & Blanchard, on the 2d of December, 1861, conveyed the premises to the defendant in error, by quit claim deed for the consideration of sixty dollars, and at the same time delivered the second and" third notes of Wilson to him.
Previous thereto, Mrs. Wilson and her husband, James H. Wilson, on or about the 18th of December, 1858, for a valuable consideration, by warranty deed duly executed and acknowledged, conveyed the premises to the plaintiff in error, and delivered him the title bond of Baldwin and the first note which they had paid. This deed recites that “it was and is subject by the terms thereof to the said bond.” The language of the deed is, “subject, nevertheless, to the bond of Heman Baldwin to Ann C. Wilson, the grantor above named.”
The bill is filed to compel plaintiff in error to pay these outstanding notes of Mrs. Wilson, and it is elaborately and ably argued by the defendant’s counsel, that this obligation rests upon the plaintiff in error, and so the Circuit Court decreed. This is the only important question presented by the record.
There is no sufficient proof that the plaintiff in error ever covenanted or agreed to pay these notes when he took the deed from Wilson and wife. The only pretence for such claim, seems to arise from the language used in the deed from Wilson and wife to the plaintiff in error, “subject, nevertheless, to the bond of Heman Baldwin to Ann C. Wilson, the grantor above named.”
The defendant in error has cited many cases supposed to be authority on this point, which we have examined.
The first case of Townsend v. Ward et al., 27 Conn., 610, was a case of exchange of lands, one parcel being incumbered by a mortgage of twelve thousand dollars. In the deed for the land thus incumbered, is this clause, “which said mortgage, the said K. hereby assumes and agrees to pay,- as part of the consideration money named herein.” K., the purchaser, went into possession and exercised acts of ownership over the land from April to November, without any suggestion of any objection on his part to the terms of the deed. In November, he returned the deed to the grantor, staling that' he refused to accept it, and should not perform the contract on his part. The court held him to a compliance, on a bill filed for that purpose, deciding that the retention of the deed so long a time was an acceptance of it. And the court also said where land is conveyed subject to a mortgage, the amount of which is allowed to the purchaser by a reduction from the price of the land, the law implies a promise on his part to indemnify the grantor against the mortgage debt.
This case is wholly variant from the case before us, as there was no agreement to pay the outstanding notes, nor were they considered in fixing the price of the lots. And at any rate, if there be any obligation whatever resting on the plaintiff in error, it is to his grantors, Wilson and wife, and not to the defendant in error.
Halsey v. Reed, 9 Paige, 452, is a similar case, where there ivas an agreement to pay off" the mortgage and its amount deducted from the purchase price.
All the cases cited on this point are to the same effect. Where the payment of an outstanding mortgage is part of the purchase price of the land, the law will imply an agreement to pay it. This case is entirely different. Here a title bond was executed, and the plaintiff in error, the grantee of the holder of this bond, took the lots subject to that bond, that is to say, on paying the obligee in the bond he could compel the execution of a deed to him. This is the whole extent of this clause in the deed from Wilson and wife to plaintiff in error. He is told the legal title is in Baldwin. Now we sell to you with that understanding, and if you pay Baldwin the balance due him, you will obtain the legal title. Baldwin’s title bond was not an outstanding incumbrance on the lots in any legal sense which the purchaser from Wilson was bound, nolens volens, to discharge. Wilson merely sold his bargain to the plaintiff in error, and he had the option to pay the hond or not, as his interests might prompt. If he does not pay the notes, he can get no title'to the lots, and and that is the whole sum and substance of it. If A bargains with B to pay him one thousand dollars for a piece of land, at a future day, until A does pay, he cannot compel B to convey, and the same is the condition of the assignee or grantee of A.
We can perceive no principle of law, justice or equity requiring the plaintiff in error to pay these notes. Because he has taken a deed for the premises subject to the terms of a title bond, and without any promise to pay them, there can be no rule of law subjecting him to their payment. By taking the deed of the Wilsons, he stepped into their shoes, and on payment of the notes, he could compel a deed. This is the attitude in which he is placed. Taking a deed “subject to an outstanding mortgage,” creates no personal liability on the grantee to pay off the incumbrance, unless he has specially agreed so to do, or the amount of the mortgage has been deducted from the purchase price. This is the extent to which the authorities cited go, and no farther. The land is the primary fund between all the parties, for the payment of the debt secured by it.
That part of the decree whióh requires the plaintiff in error to pay the balance of the purchase money, if any remains due after a sale of the lots, is reversed, and the decree will stand simply for a sale of the premises to pay the purchase money, they being subject to such lien. The decree is, therefore, modified.
Decree reversed in part, and modified.