(dissenting) :
‘ I dissent. It appears that one of the chief issues before this court is' the construction to' be placed upon that portion of the assignment of contract set forth in the main opinion. I would construe that language as creating an agreement of indemnity wherein the assignees promise to save harmless the assignors from any claim or demand rising under the contract. While there may be cases supporting the view of the main opinion, it is my impression that the language of the assignments is too vague and uncertain for us to conclude that the assignees intended to assume payment of the purchase' price in any event. I would require a more express promise to pay the purchase price on the part of the assignees which would amount to a novation before ordering that the plaintiff is entitled to a deficiency judgment against successive assignees.1 The promise to pay is not a covenant that runs with the land.2
The main opinion relies in part upon Radley v. Smith whereiñ this court quoted with approval excerpts from the Restatement of Contracts. The opinion does not contain the wording of the contract there involved and I doubt whether we should rely upon that portion of- the restatement *383here.3 It is also noted that the Alaska case cited in the main opinion deals with a suit for specific performance rather than a foreclosure proceeding.
The fact that numerous real estate transactions in this jurisdiction are handled by real estate contracts which are seldom recorded persuades me that assignments of such contracts should be strictly construed.
The plaintiff here as assignee of the original vendor named in the contract elected to proceed under Section 16C of that contract which gave the vendor the option of passing title to the buyer and then proceeding to foreclose the contract in accordance with the laws pertaining to the foreclosure of mortgages. The record is clear that the plaintiff did not comply with that provision of the contract and did not convey title to the buyers. The procedure elected by the plaintiff resulted in the anomalous situation of the plaintiff seeking to foreclose its own lien upon its own property and after- decree, bidding, in the property at the sheriff’s sale for a sum far less than the balance due on the purchase price. I do not believe that the courts should aid the plaintiff in dealing with its property in this manner. . I would affirm the lower court.
. Perkins v. Brown, 179 Wash. 597, 38 P.2d 253, 101 A.L.R. 275.
. Lisenby v. Newton, 120 Cal. 571, 52 P. 813; Bank of America Natl. T. & Sav. Assn. v. McLaughlin, 152 Cal.App.2d Supp. 911, 313 P.2d 220; Fine v. Bradshaw, 138 Cal.App.2d 862, 292 P.2d 537; Kneberg v. H. L. Green Co., Inc., 7 Cir., 89 F.2d 100; Mound Valley Vitrified Brick Co. v. Mound Valley Natural Gas & Oil Co., C.C., 258 F. 936; East Vedado Corp. v. E. S. Adkins & Co., 157 Md. 416, 146 A. 385.
.Section 164(1), Restatement of Con-' tracts, quoted in the citation of the main opinion is taken from Chapter 7 of that text. The introductory statement as contained in Section 148 contains the following qualifications: “Negotiable instruments are excluded from .the restatement in this chapter * * * because the rules governing them are to some extent different. ■ * * * Por a similar rea*383son the statement of the benefits and burdens attached to successive owners of property because of a contract in a prior' conveyance or lease is. .omitted.”