Mortgage—Assumption by Grantee—Action op Foreclosure—Failure op Answer to Deny Assumption.—The failure of the mortgagor in an action of foreclosure against him and a subsequent purchaser of the mortgaged premises to deny the allegation of the complaint that such purchaser agreed to assume and pay the mortgage as a part of the consideration of the deed to him, does not constitute an admission of such assumption so far as concerns the mortgagor and the plaintiff.

Id.—Complaint Against Two Persons—Separate Answers—Scope op Denials.—Where a complaint is directed against two persons, and the liability of one involves some facts which are not material to the liability of the other in the cause of action declared upon, and they answer separately, neither is required to answer those allegations which relate solely to the liability of the other.

Id.—Amendment op Complaint—Conpormanoe to Proop—Discretion op Court.—The court has discretion in such an action to permit the plaintiff, upon a motion made under sections 663 and 663a of the Code of Civil Procedure, to amend his complaint so as to conform to the proof by omitting the allegation that the purchaser assumed payment of the mortgage debt.

Id.—Assumption op Mortgage by Grantee—When not Shown—Presumption.—A statement in a deed of encumbered land that the property is conveyed “subject to” the mortgage, describing it, does not import an assumption of the mortgage by the grantee, even if the deed recites as the consideration the full value of the land as estimated in the purchase; and if the deed recites only a nominal consideration, a strong presumption arises that the grantee does not assume payment of the mortgage as part of the price, but merely buys the land as it is with the encumbrances on it.

Id.—Form of Agreement to Assume Mortgage.—It is not necessary that the promise to pay the mortgage should appear in the deed, or in writing. The obligation may be made orally or in a separate instrument; it may be implied from the transaction of the parties, or it may be shown by the circumstances under which the purchase was made, as well as by the language used in the instrument.

Id.—Executory Agreement to Purchase Land—When Does not Include Assumption of Mortgage.—An agreement by a grantee to. assume a mortgage existing on the property is not established by the recital in the executory contract of purchase that the property is sold “subject to” the mortgage, and that “the balance of the said purchase money is due and payable upon tender of a good and sufficient deed of the property sold,” where it appears that the agent who executed the agreement upon the part of the grantee was without authority to make such an agreement for such an assumption and that the mortgage was not due at the time provided for the payment of such balance of the purchase price.

Id.—Estoppel to *Deny Assumption of Mortgage.—Such recitals in the executory contract of purchase do not estop the grantee from denying an assumption of the mortgage.