The opinion of the court was delivered by

When Farris and wife sold the farm on which the mortgage given by them to Matteson was resting, they sold it subject to that mortgage. When their grantees sold it to the orator Bean, they recognized their liability to pay the Farris notes to Matteson, and in the exchange of farms with defendant Whittemore, left in his hands funds to pay the Farris notes and mortgage to Matteson, under an agreement that he would pay said notes, and save the Farris farm therefrom. The performance of this agreement was secured by a mortgage from him on the Bean farm, which they then conveyed to the defendant Whittemore. The condition of the mortgage is that Whittemore shall and will pay the two Farris notes, therein describing them particularly. This promise from Whittemore is not in terms to any one, but by legal intendment to the holder of the Farris notes. On these facts, Whittemore, in legal effect, became the principal, whose primary duty it was to pay the Farris notes. As between Mrs. Farris, her grantees, and Whittemore, she was but a surety thereafter for the payment of the notes. His promise to pay them was for full consideration, in writing, contained in the condition of the mortgage signed by him and in equity, at least, enured to the benefit of the holder of the Farris notes, though the security for the fulfillment of the promise was taken to Bean, who by the same transaction became the owner of the Farris farm, on which the notes were also secured. While matters were in this position, it cannot be doubted, *441we think, upon the Farris notes falling due, Matteson and Bean could have maintained a foreclosure of Whi'ttemore’s mortgage against him for the payment of the notes. Matteson could have joined in such foreclosure, as he was .the owner of the notes to which Whittemore’s promise attached. The mortgage to Bean was an incident to the notes. Bean, as the legal holder of the mortgage, could have joined in such foreclosure, and as also interested to have his farm cleared from the encumbrance resting upon it, by reason of the Farris mortgage, which also secured the payment of said notes. The orator Whitcomb is now the legal owner of the Farris notes given to Matteson, and of the Farris farm. As to the farm, he stands in the rights of Bean, having secured his equity of redemption therein by the foreclosure of two mortgages resting thereon, executed earlier than the mortgage securing the Farris notes to Matteson. The Matteson notes he has purchased, and thereby succeeded to Matteson’s rights in Whittemore’s mortgage given to secure them. The orator Bean still holds the Whittemore mortgage; and since the law day thereon has passed, holds the legal title to the Bean farm, as security for the fulfilment of the condition thereof, to wit: the payment of the Farris notes, and the relief of the Farris farm therefrom, both of which interests now. belong to his co-orator Whitcomb. On these facts, and the legal effect thereof, without regard to the question of estoppel, raised by the facts found by the master, we think, the orators are entitled to hold the foreclosure of the mortgage which the Court of Chancery decreed to them.

■ The decree is affirmed and cause remanded.