dissenting:
When a promise, for value, is made to one for the benefit 'of another, with the intention to benefit him, it is conceded" the beneficiary may maintain an action in his own name upon a breach of the promise. In this case, however, the action is brought in the name of the man to whom the promise is alleged to have been made, and not in the name of the one for whose benefit it is supposed to have been made. If it be the true construction of this promise 'that it was intended for the benefit of the holder of the mortgage, then Dean, as between himself and Walker, is a mere surety for Walker, and can maintain no action, at least for more than nominal damages, until he has paid money, to the holder of the mortgage. Until then he is not damaged by the failure of Walker to pay. It can add nothing tb his right of recovery that he sues for the use of the mortgagee.
Aside from this, it seems to us that the true construction of the promise of Walker to pay off the mortgage is, that he undertook to indemnify Dean against the mortgage. ' Such is the teaching of the New York cases referred to, and we think it is, sound. (See, also, Norwood v. De Hart, 30 N. J. Eq. 412, and Miller v. Whipple, 1 Gray, 317.) , We do not say that a grantee of mortgaged premises can not be made liable to pay the mortgage indebtedness by an assumption clause in the- deed, however strong the intent may be expressed by the language used, unless the grantor is himself, at the time of making the deed, liable for such indebtedness. What we think is, that in a ease where the grantor is not personally liable, .as here, the words called the assumption clause, are to be construed as a mere indemnity to the grantor, unless there was an intention on the part of the grantor to do a kindness to the mortgagee or confer a benefit upon him. No doubt a grantor, if he chooses, may contract with a stranger that the latter will paya given sum to a friend of the grantor, or to any one to whom he may choose to do a kindness or confer a benefit upon, and in such case the contract could be enforced by the beneficiary. In this case there are no words in the deed, and no evidence or circumstances, indicating that the grantor took any interest in the welfare of the then unknown holder of this mortgage, or intended to confer upon him any benefit. It is to be supposed, from the circumstances, there was no such intention, and in such case we are of opinion - no action can be maintained on the promise by the mortgagee, or for his use, and that the promise must be understood as only for the indemnity of the grantor.