Opinion
6 Div. 166.
March 29, 1934.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
London, Yancey, Smith Windham and Al. G. Rives, all of Birmingham, for appellant.
A real estate mortgagee is entitled to have and recover a judgment against a remote purchaser of the mortgaged premises who assumed the debt but whose vendor had not done so and is not liable therefor. Scott v. Wharton, 226 Ala. 601, 148 So. 308.
J. Chandler Burton, of Birmingham, for appellee.
Brief did not reach the Reporter.
This cause was submitted on an agreed statement of facts under Code, § 6095, as amended (Acts 1931, p. 409).
The parties stipulate as the sole question to be decided the following: "Is a real estate mortgagee entitled to have and recover a judgment against a remote purchaser of the mortgaged premises who assumed the mortgage debt, but whose vendor had not done so, and who is in no wise liable therefor?"
This inquiry has been decided in the affirmative in the recent case of Scott v. Wharton, 226 Ala. 601, 148 So. 308.
The judgment of the court below is reversed and the cause remanded on the authority of the above decision.
We may note, however, that in the present case, besides the consideration for such promise mentioned in Scott v. Wharton, supra, there was a further consideration, in that the defendant's immediate vendor made a warranty deed, and, as a consideration for such covenant, the vendee contracted to remove the mortgage incumbrance.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.