Enos and another vs. Sanger and another. grantors acknowledged. The deed was made with covenants that the premises were free from incumbrances "except a mortgage of $22,500 thereon, which grantee is to pay." The grantors had no interest in the payment of the mortgage. The deed does not state that the payment of the mortgage is a part of the consideration for the conveyance, and a fair construction of the terms of the instrument cannot read into it such an intent. The findings of the court do not show that the promise of the C. M. Sanger Sons Company to pay the mortgage was a part of the consideration for the conveyance. The findings could not show this because the undisputed evidence contained in the deed showed that the consideration had been fully paid. This construction of the clause in question is supported by Brown v. Stillman, 43 Minn. 126; Nelson v. Rogers, 47 id. 103; Morris v. Mix, 4 Kan. App. 654. MARSHALL, J. The decisions of the various courts are by no means uniform, either in respect to the binding effect of a covenant by a grantee of land to pay the consideration therefor to a third person, or the ground upon which the obligation rests, if sustained. It is useless to review and try to harmonize the various adjudications. In fact, it is difficult to find a line upon which they can be harmonized respecting the ground of the liability. In this state the liability rests upon the doctrine that where one person, for a valuable consideration, engages with another to do some act for the benefit of a third person, the latter may maintain an action against the promisor for the breach of the agreement. Such doctrine is the settled law in this state. Bassett v. Hughes, 43 Wis. 319; Hoile v. Bailey, 58 Wis. 434; Grant v. Diebold S. & L. Co. 77 Wis. 72; Kollock v. Parcher, 52 Wis. 393, and many other cases that might be cited. All that is required to render such rule applicable is for the obligor, for a sufficient consideration to support the promise, Enos and another vs. Sanger and another. to agree to do some act for the benefit of a third person. No question of subrogation or novation is involved. Such third person, whether sustaining any relation to the person with whom the agreement is made or not, or to the person from whom the consideration moves, may adopt such promise made for his benefit, and thereby bring himself into privity with the obligor, and enforce the promise. While the incidental effect of the execution of such promise is to discharge the debt of another to such third person, such promise is really to pay the debt of the promisor, to perform his own contract, entered into for a sufficient consideration to support it. Kollock v. Parcher, supra; Hoile v. Bailey, supra. In Bishop v. Douglass, 25 Wis. 696, the liability of the grantee to pay the mortgage debt was placed on the ground that he received the conveyance subject to a condition, and thereby became bound to perform it, which, as applied to the facts of that case, is only another way of stating the rule before referred to. In Palmeter v. Carey, 63 Wis. 426, the liability was based on the same principle, though, as in Bishop v. Douglass, supra, the rule was not distinctly stated other than by saying that "the grantee became liable for payment of the mortgage debt by making a valid promise to pay it." In Brewer v. Dyer, 7 Cush. 337, the principle is stated in the language of Mr. Justice CRAIG as follows: "Thus, upon the principle of law long recognized and clearly established, where one person, for a valuable consideration, engages with another to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such agreement. It does not rest upon the ground of any actual or supposed relationship between the parties, as some of the earlier cases seem to indicate, but upon a broad and more satisfactory basis that the law, operating upon the acts of the parties, creates the debt, establishes the privity, and implies the promise and obligation on which the action is founded." Enos and another vs. Sanger and another. In most, if not all, jurisdictions where the liability of a grantee to pay a debt secured upon the property conveyed to him, because of his promise in the conveyance, is sustained on the ground stated, the fact of whether the grantor was liable for the debt or not is held immaterial. Dean v. Walker, 107 Ill. 540; Bay v. Williams, 112 Ill. 91; Merriman v. Moore, 90 Pa. St. 78; Hare v. Murphy, 45 Neb. 809. From the foregoing authorities which more directly state the doctrine that has long prevailed in this state, applicable to this class of cases, than any case in our own court, and from the general principle upon which such cases rest, that has long been the settled law here, we deduce the following: Where a grantee, in the conveyance to him, assumes and agrees to pay the debt of a third person as part of the consideration for his purchase, there is no necessity for any consideration to pass from such third person or his creditor to such grantee to support such agreement; a portion of the consideration for the purchase being left in such grantee's hands, appropriated by the grantor to the payment of the debt which such grantee agrees to pay in consideration of the conveyance and of such appropriation of the purchase money, he cannot be heard to object to the performance of his contract because his grantor was not liable for such debt. When the grantor makes such an appropriation, and the grantee, for a sufficient consideration, promises to pay the amount so appropriated to the creditor of such third person, such grantee thereby becomes liable to such creditor; and such liability rests solely on such consideration and such promise. By the Court. The judgment of the superior court is reversed, and the cause remanded for further proceedings in accordance with this opinion. The general question of the right to sue upon a contract made between other parties for the benefit of the plaintiff is the subject of an extensive note to Jefferson v. Asch (53 Minn. 446), in 25 L. R. A, 257.— REP. The German American Bank vs. Devlin. THE GERMAN AMERICAN BANK, Respondent, vs. DEVLIN, Garnishee, Appellant. April 8-April 30, 1897. Voluntary assignment: Bond of assignee: Failure of officer to sign jurat of affidavit of sureties: Garnishment. The court commissioner before whom the sureties on the bond of an assignee made affidavit as to their responsibility as required by sec. 1694, R. S., approved and filed the bond without signing the jurat of the affidavit. Subsequently, without obtaining leave of court to amend the proceedings, he attached his signature while the affidavit was on file in the clerk's office. Held, that the assignment was void as to a creditor of the assignor who commenced garnishment proceedings before the signature was attached. APPEAL from a judgment of the superior court of Milwaukee county: R. N. AUSTIN, Judge. Affirmed. The facts are stated in the opinion. J. M. Clarke, for the appellant. For the respondent there was a brief by Hoyt, Ogden & Olwell, attorneys, and Jackson B. Kemper, of counsel, and oral argument by F. M. Hoyt and L. A. Olwell. To the point that the signature to the jurat is essential to make a valid affidavit, they cited Royston's Appeal, 53 Wis. 612, 623; Kidder v. Fay, 60 id. 218; McDermaid v. Russell, 41 Ill. 489; Westerfield v: Bried, 26 N. J. Eq. 357, 359; State v. Green, 15 N. J. Law, 88, 90; Alford v. McCormac, 90 N. C. 151; Morris v. State, 2 Tex. App. 502; Swiney v. State, 119 Ind. 478; Cantwell v. State, 27 id. 505; Bank v. Hinchcliffe, 4 Ark. 444. CASSODAY, C. J. It appears from the record, and is in effect found by the court, that December 7, 1895, the defendant Phillip H. Murphy made a voluntary assignment to the garnishee, James J. Devlin, for the benefit of his creditors, and filed the same in the office of the clerk of the circuit The German American Bank vs. Devlin. court on that day; that among the assignment papers so filed was a bond executed by Devlin to the said clerk, conditioned as provided by law, with two sureties, who were sworn by the court commissioner and testified on oath as to the facts stated in the form of affidavit annexed to said bond; that upon said bond was indorsed the approval of the court commissioner; that attached to the bond was an affidavit of the sureties, duly signed by both of them, but the jurat of said affidavit was not signed by the court commissioner, or any other person; that after the filing of the assignment and said bond in that condition this action was commenced against Murphy, as principal defendant, and Devlin was garnished; that thereafter the court commissioner attached his signature to the jurat of the affidavit of the sureties while the same was on file in the office of the clerk; that no order was ever entered or made authorizing or allowing an amendment to the proceedings; that at the time of the service of the garnishee summons the garnishee had in his possession and under his control personal property and effects belonging to Murphy, which he claimed to hold as such assignee, and in no other manner, and with no lien or interest therein; that subsequently, and prior to the trial, the garnishee sold and converted into money the property so assigned, and received therefor $953, which remained in his possession; that. the garnishee had still other property of Murphy, held under the assignment, to the amount of $576.25. And as conclusions of law the court found, in effect, that Devlin was liable herein as garnishee. From the judgment entered thereon accordingly the defendant Devlin, as such garnishee, brings this appeal. We are clearly of the opinion that the trial court properly held that the assignment was void, as against the plaintiff, at the time the garnishee papers were served, by reason of the failure of the commissioner to sign the jurat; and hence that the assignee was properly held liable in garnishment. This |