N. W. 486), contending that this court so held in that case. In a recent decision handed down by this court where a like contention was made under a bill of lading in all respects similar to that which is the basis of the instant case, this court distinguished the Nelson Grain Co. Case, and held as follows (after stating the facts and the question involved therein):

"In the instant case the plaintiff is the consignor, and not a stranger to the transaction, and gave no order for the delivery of the beans, and so it cannot be said that the surrender provision in the contract of shipment, the bill of lading, was waived. Here the shipper placed his property in possession of the carrier, which gave him a bill of lading making a contract between them which in most positive terms says that its surrender shall be required before the delivery of the property, and upon this agreement the shipper had a right to rely.

"It is true that prima facie the consignee is the owner of the goods shipped, but it is equally true, and the rule is well established, that, when there is an order bill of lading outstanding, the carrier delivering the goods without requiring the presentation of the bill does so at its peril, and is liable to a bona fide holder thereof. (Citing authorities.)" Turnbull v. Railroad Co., 183 Mich. 213 (150 N. W. 132).

As far as this first contention is concerned, this decision is conclusive. The trial court therefore was not in error in refusing to hold as requested by counsel for defendants.

The second proposition of appellants, that there was no liability upon the initial carrier for a loss of the kind involved in this suit, for the reason that the Federal statute under which the action is brought does not cover such a claim, cannot be sustained. This question has been passed upon by the Supreme Court of the United States, followed twice by this court, holding that the initial carrier is liable. Atlantic, etc., R. Co. v. Mills, 219 U. S. 186 (31 Sup. Ct.

164, 31 L. R. A. [N. S.] 7); Sturges v. Railway Co., 166 Mich. 231 (131 N, W. 706); Perkett v. Railroad Co., 175 Mich. 253, at page 259 (141 N. W. 607).

Upon appellants' third proposition, it is only necessary to state that the evidence in the case was undisputed that plaintiffs had, by reason of the unauthorized delivery of these beans by the terminal carrier, suffered a loss to the amount of their value. The record does not disclose any error on the part of the trial court.

The judgment is affirmed.

BROOKE, C. J., and KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

SWARTHOUT v. SHIELDS.

1. FRAUDS, Statute of-PRIORITY-SALE-REDEMPTION.

The purchaser of land which is subject to a mortgage who assumes payment of the mortgage debt may agree not only to relieve the grantor of the incumbrance but also charge himself as against the mortgagee with personal responsibility; the agreement may rest in parol and be valid under the statute of frauds.

2. EVIDENCE-PAROL EVIDENCE RULE - ASSUMPTION OF MORTGAGE

DEBT.

Testimony in a suit to foreclose a mortgage that as a part of the consideration for the purchase of lands the grantee in the deed assumed and agreed to pay two outstanding mortgages was not improperly received and considered, although the deed did not purport to contain the agreement and merely excepted from the covenants the incumbrances in question.

3. MORTGAGES - CONTRACTS NOT INURE TO MORTGAGEE. Defendant purchased certain lands by a deed of convey. ance which excepted two mortgages from the covenants. He permitted the senior mortgage to be foreclosed and purchased the interest after the expiration of the period of redemption. Complainant commenced to foreclose the second mortgage, claiming that the purchase should inure to her benefit, because defendant had agreed as part of the price paid for the real estate to satisfy both incumbrances. Held, that the interest obtained did not inure to her benefit.

PROMISE TO PAY-WHEN TITLE DOES

Appeal from Livingston; Miner, J.

Submitted April 21, 1914. (Docket No. 95.) Decided April 19, 1915. Rehearing denied December 22, 1915.

Bill by Melinda Swarthout against William H. Shields and others to foreclose a mortgage. From a decree for the complainant, defendants Shields appeal. Reversed.

George F. MacNeal, for complainant.

J. A. Tillson, for defendant Hoyt.

William P. Van Winkle, for defendants Shields.

BIRD, J. These proceedings were begun by complainant to foreclose a mortgage for $700, which was a lien on certain premises situate in Tyrone township, Livingston county, and described as:

"A piece of land commencing 20 rods south of the northwest corner of section 27; thence south 46 2/3 rods; thence east 240 rods; thence north 66 2/3 rods; thence west 160 rods; thence south 20 rods; thence west 80 rods to the place of beginning."

The premises were owned by Ambrose Hoyt, and there were two mortgages thereon one for $1,750, and another for $700, which was a second mortgage and is the one involved in this controversy. With these two incumbrances thereon, Hoyt, on the 25th day of

March, 1910, sold the premises to defendant Shields for an agreed consideration of $3,200. The consideration was made up of the following items: $1,750 mortgage, with accrued interest; $700 mortgage, with accrued interest; $100 to the tenant on the farm; $64 to a real estate broker; and $140 in cash to Hoyt. Shields paid nothing on either the principal or interest, and the first mortgage was foreclosed by advertisement by the Chamberlain estate, and bid in by the executors. The equity of redemption expired April 13, 1912. In October, 1912, six months later, defendants Shields purchased the premises from the executors of the estate for $2,401.41, and thereafter defendants Shields refused to recognize complainant's mortgage as having any force or effect. In June, 1913, complainant filed this bill to foreclose her mortgage. The theory of the complainant was that by the covenants in the mortgage it was obligatory on both Hoyt and Shields to pay the mortgage; that, having made default therein, and Shields afterwards having acquired title thereto from another source, he was estopped from denying that the purchase of such title inured to the benefit of the complainant. The chancellor took this view of the case, and granted a decree of foreclosure and a decree for deficiency against both Hoyt and Shields.

The propositions argued by counsel for defendants Shields are: First, that the verbal promise to pay the mortgage would not bind the defendants Shields; second, that they now hold title to the land in question by warranty deed from the executor of the estate of Ezra Chamberlain, deceased, and that this title is paramount to and free and clear from the mortgage claim of the complainant; and, third, that in no case can they be held personally liable because the complainant's bill does not ask for a personal decree as against them.

1. The deed from Hoyt to Shields did not recite either that the grantee assumed the mortgages or that he agreed to pay them. In warranting the title, however, the mortgages were excepted, but no further reference was made to them in the deed. It is the claim of Hoyt that the promise of Shields to pay the mortgage was a part of the consideration for the deed, and reliance is had upon the verbal promise of Shields to pay the mortgages and the accrued interest thereon. It is objected that this proof was not competent to establish the fact. We think it was. The testimony is convincing that the promise to make payment of the mortgages was a part of the consideration of the deed. Under such circumstances the general rule has been stated to be that:

"The purchaser of mortgaged land may assume the payment of the mortgage debt in such a manner as not only to relieve the grantor of the incumbrance, but also to make himself liable to the mortgagee, by any contract or agreement on his part which distinctly manifests his consent and intention to charge himself with such personal responsibility, * * and the agreement may even rest wholly in parol, and in that case is not considered as being within the statute of frauds." 27 Cyc. p. 1345; Strohauer v. Voltz, 42 Mich. 444 (4 N. W. 161).

Our conclusion is that it was competent to show by parol testimony that the promise to pay these mortgages was a part of the consideration for the convey

ance.

2. We do not think it can be said that the title purchased by Shields from the Chamberlain estate inured to the benefit of complainant's mortgage. The proceeding by which the mortgagors' title is cut off is statutory and certain. It provides that:

"Unless the premises described in such deed shall be redeemed within the time limited for such redemption, as hereinafter provided, such deed shall thereupon become operative, and shall vest in the grantee