— This case differs from United States v. Mertz, 2 Watts, 406, on which the court below ruled it. For here the grantee, when he took the property, did so expressly on his written assumption of the proportional part of the mortgage debt, and also stipulated by the same instrument, that it should be subject to such proportional part, amounting to the sum of $2040, which he assumed thereby and agreed to pay. This undertaking would make him liable for the amount in a proceeding against him by Hippie. Whether covenant would be the proper form of action, where it appears that he had not executed the deed, but was a party to it and held under the conveyance, it is unnecessary to decide; for if covenant would not lie, an action on the case would, and the agreement in writing would be sufficient evidence. In United States v. Mertz there was no agreement to pay the encumbrances.

Judgment reversed, and venire facias de novo awarded.