WILLARD
v.
WOOD.

*312 Mr. Enoch Totten, (with whom was Mr. Stephen Condit on the brief,) for plaintiff in error.

Mr. John Sidney Webb, (with whom were Mr. W.B. Webb and Mr. H.R. Webb on the brief,) for defendant in error.

MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.

This action is brought by a mortgagee against the executrix of the grantee named in, and who has accepted, a deed executed by the mortgagor only, expressed to be "subject to the mortgage," and by the terms of which the grantee "assumes and covenants to pay, satisfy and discharge" the mortgage debt. After issue joined on the pleas of never indebted and the statute of limitations of three years, the case was submitted, and judgment rendered for the defendant, upon an agreed statement of facts.

By the statute of limitations of Maryland of 1715, c. 23, §§ 2, 5, in force in the District of Columbia, all actions on simple contracts must be brought within three years, and actions on specialties may be brought within twelve years, after the cause of action accrues. 1 Kilty's Statutes.

The decisions of the courts of New York, though proceeding upon various and not always consistent reasons, clearly show that, by the law of that State, (in which the land is situated, and the bond and mortgage, as well as the subsequent deed from the mortgagor, were executed and delivered,) the mortgagee is entitled to maintain a suit, either in equity or at law, against the grantee of the mortgagor to enforce the payment of the mortgage debt. Halsey v. Reed, 9 Paige, 446; King v. Whitely, 10 Paige, 465; Blyer v. Monholland, 2 Sandf. Ch. 478; Trotter v. Hughes, 12 N.Y. 74; Burr v. Beers, 24 N.Y. 178; Campbell v. Smith, 71 N.Y. 26; Pardee v. Treat, 82 N.Y. 385; Hand v. Kennedy, 83 N.Y. 149; Rowen v. Beck, 94 N.Y. 86.

Assuming that the mortgagee has acquired by the law of New York a right to enforce such an agreement against a *313 grantee of the mortgagor, the form of his remedy, whether it must be in covenant or in assumpsit, at law or in equity, is governed by the lex fori, the law of the District of Columbia, where the action was brought. Dixon v. Ramsay, 3 Cranch, 319, 324; United States Bank v. Donnally, 8 Pet. 361; Wilcox v. Hunt, 13 Pet. 378; Leroy v. Beard, 8 How. 451; Pritchard v. Norton, 106 U.S. 124, 130, 133.

Much of the argument at the bar was devoted to the question, whether an agreement of the grantee, in a deed signed and sealed by the grantor only, is, as has been held in New Jersey and New York, in the nature of a covenant under seal, and consequently a specialty; Finley v. Simpson, 2 Zabriskie, (22 N.J.L.,) 311; Crowell v. St. Barnabas Hospital, 12 C.E. Green, (27 N.J. Eq.,) 650, 652; Atlantic Dock Co. v. Leavitt, 54 N.Y. 35; Bowen v. Beck, 94 N.Y. 86; or, as held in other States, in the nature of an assumpsit or implied contract, arising from the acceptance of the deed, and consequently a simple contract. Locke v. Homer, 131 Mass. 93, 102; Foster v. Atwater, 42 Conn. 244; Johnson v. Muzzy, 45 Vermont, 419; Maule v. Weaver, 7 Penn. St. 329; Hocking County Trustees v. Spencer, 7 Ohio, pt. 2, 149.

But we do not find it necessary to pass upon that question, since, by the law of the District of Columbia, whether the agreement of the grantee is or is not considered as under seal, it is an agreement made with the grantor only, and creates no direct obligation to the mortgagee, upon which the latter can sue at law.

If the agreement of the grantee is considered as under seal, by reason of the deed being sealed by the grantor, it falls within the settled rule of the common law, in force in the District of Columbia, that no one can maintain an action at law on a contract under seal to which he is not a party. Hendrick v. Lindsay, 93 U.S. 143, 149; Southampton v. Brown, 6 B. & C. 718; Chesterfield & Midland Co. v. Hawkins, 3 H. & C. 677; Northampton v. Elwell, 4 Gray, 81; Crowell v. St. Barnabas Hospital, 12 C.E. Green, (27 N.J. Eq.,) 650, 653.

If the agreement of the grantee is considered as in the nature of assumpsit, implied from his acceptance of the deed, *314 still, being made with the grantor only and for his benefit, upon a consideration moving from him alone, there being no privity of contract between the grantee and the mortgagee, and the latter not having known of or assented to the agreement at the time it was made, nor having since done or omitted any act on the faith of it, it follows that, by the law as declared by this court, and prevailing in the District of Columbia, the mortgagee cannot maintain an action at law against the grantee. Keller v. Ashford, 133 U.S. 610, 620-622, and National Bank v. Grand Lodge, 98 U.S. 123, there cited. The payments made by the grantee, and accepted by the mortgagee, on account of the mortgage debt, were made persuant to the grantee's contract with the mortgagor, and did not create, or warrant to be inferred, a new contract between the grantee and the mortgagee. Moreover, if the grantee's liability was in assumpsit only, it was, in any view of the case, barred by the statute of limitations in three years.

In the District of Columbia, the only remedy of the mortgagee against the grantee was, as adjudged upon great consideration in Keller v. Ashford, above cited, by bill in equity, in which he might avail himself of the right of the mortgagor against his grantee, because in equity a creditor is entitled to avail himself of a security which his debtor holds from a third person for the payment of the debt.

In the Supreme Court of the District of Columbia, as in the Circuit Court of the United States, the jurisdiction in equity is distinct from the jurisdiction at law, and equitable relief cannot be granted in an action at law. Rev. Stat. D.C. §§ 760, 800; Fenn v. Holme, 21 How. 481.

A statement of facts agreed by the parties, or, technically speaking, a case stated, in an action at law, doubtless waives all questions of pleading, or of form of action, which might have been cured by amendment; but it cannot enable a court of law to assume the jurisdiction of a court of equity. Scudder v. Worster, 11 Cush. 573; McRae v. Locke, 114 Mass. 96; West Roxbury v. Minot, 114 Mass. 546.

For these reasons, this action cannot be maintained, and the judgment for the defendant must be

Affirmed.