Thus, under Swanson, when a mortgage contains a clear, independent and unequivocal promise to pay the amount provided for in a note, a mortgagee may sue to enforce that promise, and her recovery is not limited to the mortgaged property. See also 55 Am.Jur.2d Mortgages ยง 135 (1971); 59 C.J.S. Mortgages ยง 341 (1949); Hilpert v. Commissioner, 151 F.2d 929 (5th Cir. 1945); Stamper v. Link, 117 Ind. App. 212, 69 N.E.2d 600 (1946), mandate modified, 117 Ind. App. 212, 71 N.E.2d 128 (1947); Hoskins v. Black, 226 S.W. 384 (Ky. 1920). We do not believe the covenant involved herein can be meaningfully distinguished from the covenant involved in Swanson.
Jones on Mortgages, 8th Ed., Vol 3, Sec. 1579; 41 C.J. Mortgages, Secs. 222, 223.'Stamper v. Link (1946), 117 Ind. App. 212, at 219-220, 69 N.E.2d 600, at 602, modified 117 Ind. App. 212, 71 N.E.2d 128."
"The mortgage in suit specifically describes the debt it secures as to amount, interest and due date, provides for the increase of such debt by the addition of insurance costs, taxes, etc., in the event the mortgagor fails to pay them and then concludes with the following covenant: `The mortgagor hereby expressly agrees to pay all and singular the sums of money above secured without relief from valuation or appraisement laws.' This we think, is sufficient to create a personal liability on the part of the decedent to pay the monies secured by the mortgage and will support an action in debt independent of the note."Stamper v. Link (1946), 117 Ind. App. 212, at 219-220, 69 N.E.2d 600, at 602, modified 117 Ind. App. 212, 71 N.E.2d 128. In the case at bar the mortgage recites in part:
" In Stamper v. Link, 117 Ind. App. 212, at page 219, 66 N.E.2d 326, 69 N.E.2d 600, 602, 71 N.E.2d 128, the court said: "It is the general rule, except where statutes provide otherwise, that if the mortgage contains a covenant to pay the debt secured, the mortgagor is personally liable and an action in debt will lie on the covenant." An Indiana statute on the construction of mortgages recognizes promises to pay contained in mortgages as being equally as binding as such promises contained in the note or bond secured by the mortgage.
Until they had done so relator had an absolute right to dismiss her cause of action. Stamper v. Link (1946), 117 Ind. App. 212, 69 N.E.2d 600; See also: 27 C.J.S. Dismissal Nonsuit ยง 18 (a), (b). Under such circumstances the court lost all jurisdiction over the case and had no authority to reinstate the action after it had been dismissed.
But no application for a continuance or to set aside the submission of the cause was made, as is usually necessary in such cases, and we do not believe that an interpretation of the law expressed by a court during the course of legal proceedings, even though erroneous, is such an "accident" or is ever so surprising to counsel that it can be said to classify as being proper for specification under this subdivision of the statute. Events occurring in the presence of the court during a trial are within the knowledge of the court without affidavit and should be stated as they are known by the judge in a bill 2. of exceptions signed by him. Rudolph v. Landwerlen (1883), 92 Ind. 34; Stamper v. Link (1947), 117 Ind. App. 212, 66 N.E.2d 326, 69 N.E.2d 600, 71 N.E.2d 128. Here the statement complained of is not only asserted to have been made in the presence of the trial court, it is asserted that the trial judge himself made the statement. It is apparent that it would be an idle procedure to permit the filing of affidavits asserting that the judge did or did not make statements which are claimed to have been made by the judge himself.
In securing the fund out of which said mortgage was to be paid the purchasers (Pranges) assumed only an equitable obligation to pay the debt secured by the mortgage, Bunch v. Grave et al. (1887), 111 Ind. 351, 354, 12 N.E. 514, supra; and the legal obligation for the payment of the debt secured by said mortgage remained that of the mortgagor (appellant). Slate v. Peoples Mutual Savings Loan Assn. (1937), 104 Ind. App. 460, 466, 8 N.E.2d 101; Stamper v. Link (1947), 117 Ind. App. 212, 219, 69 N.E.2d 600; 59 C.J.S., Mortgages, ยง 342, p. 473. At the time the purchasers (grantees) discharged their equitable obligation and finished payment of the purchase price of said property by paying to the Wayne Mortgage 8, 9. Company, Inc. the debt secured by said mortgage, they also discharged the legal obligation of appellant.
The conveyance by a mortgagor of the mortgaged premises to another does not exonerate him from personal liability for the debt secured. Stamper v. Link (1946), 117 Ind. App. 212, 69 N.E.2d 600. In our view, it is the law of Indiana that a conveyance of real estate subject to an encumbrance such as a mortgage, which is the personal obligation of the grantor, without any assumption by the grantee to discharge the encumbrance, does not operate to relieve the grantor of his obligation to the mortgagee or to transfer such obligation to the grantee.
" See State ex rel. A. Chalmers Mfg. Co. v. Boone C. Ct. (1949), 227 Ind. 327, 86 N.E.2d 74. When a motion to dismiss is filed by plaintiff at an appropriate time, the Court has no alternative but to dismiss the same. Stamper v. Link (1946), 117 Ind. App. 212, 69 N.E.2d 600. Appellants in paragraph 3 of their motion for order and remanding of this cause, apparently criticize appellee for filing its motion for dismissal without giving notice to appellants.
Sec. 2-4718, Burns' 1946 Replacement. Stamper v. Link (1946), 117 Ind. App. 212, 66 N.E.2d 326; State ex rel. Cox v. Superior Court of Marion County et al. (1954), 233 Ind. 531, 121 N.E.2d 881; State v. Jacobson (1951), 229 Ind. 293, 98 N.E.2d 187; Holt v. Basore (1948), 118 Ind. App. 146, 77 N.E.2d 903. Now, is said ยง 7-812, Burns' 1953 Replacement, in conflict with said Rule 1-3 on the matter of procedure?