of parol testimony except, of course, in 206 cases of fraud or mistake. These reasons have been so often advanced by courts and law-writers, and are so well understood by the profession, that it is not necessary to repeat them here. The judgment will be affirmed. Scott, C. J., and Reavis, Gordon, and Dunbar, JJ., concur. AGENCY-LIABILITY OF AGENT CONTRACTING FOR UNDISCLOSED PRINCIPAL-PROOF OF AGENCY.-A written contract executed by an agent must, in order to bind his principal, purport on its face to be his contract: Clealand v. Walker, 11 Ala. 1058; 46 Am. Dec. 238; Stone v. Wood, 7 Cow. 453; 17 Am. Dec. 529, and note. If an agent contracts in his own name he is personally answerable, and cannot escape liability by proving that he had a principal and intended to contract for him alone: Monographic note to Greenberg v. Whitcomb Lumber Co., 48 Am. St. Rep. 917; Argersinger v. Macnaughton, 114 N. Y. 535; 11 Am. St. Rep. 687. Parol evidence can never be admitted for the purpose of exonerating an agent who has entered into a written contract as principal, even though he should propose to show, if allowed, that he disclosed his agency and mentioned the name of his principal at the time the contract was executed: Bulwinkle v. Cramer, 27 S. C. 376: 13 Am. St. Rep. 645. Compare Deitz v. Insurance Co., 31 W. Va. 851; 13 Am. St. Rep. 909, and note. It is a general rule that agency cannot be shown by the testimony of the supposed agent: Note to Lawall v. Groman, 57 Am. St. Rep. 668; Pepper v. Cairns, 133 Pa. St. 114; 19 Am. St. Rep. 625. See notes to Davis v. Henderson, 59 Am. Dec. 231; Bank of Rochester v. Monteath, 43 Am. Dec. 684, 685. ORDWAY V. DOWNEY. [18 WASHINGTON, 412.] MORTGAGES-ORAL AGREEMENT TO ASSUME-BURDEN OF PROOF.-An oral agreement by a grantee to assume and pay a mortgage on the granted premises is enforceable as a contract independent of, and additional to the deed, but the burden of proof is on the party setting up such contract to establish it by a clear preponderance of the evidence which must be clear, satisfactory, and convincing. He is not entitled to recover if the evidence is equally balanced. J. B. Murphy and Blaine & De Vries, for the appellants. 412 GORDON, J. In the year 1890 Gotthard Grot and wife, owners of certain real property situated in King county, in order to secure their promissory note for the sum of two thousand two hundred and seventy-five dollars, executed a mortgage upon said premises in favor of Thomas S. Krutz, who thereafter, for value, assigned said mortgage and the note secured thereby to the respondent Ordway. Subsequent to the execution of the mort gage 418 Grot and wife sold the premises to respondent Christ R. Frasch by a deed of conveyance, which contained the following clause, following the description of the premises conveyed, viz: "To have and to hold unto the said Christ R. Frasch and to his heirs and assigns forever, as his sole and separate property and estate, the same being conveyed as a gift to said Frasch by his mother, said Helen Grot. Said Frasch does, nevertheless, hereby assume and agree to pay off and discharge any and all encumbrances that are now liens upon the aforesaid real estate.” Frasch and wife thereafter, and prior to the commencement of this action, conveyed the premises by a deed of general warranty to the appellant Patrick Downey. The deed from Frasch and wife to the appellant recites the consideration of five thousand dollars gold coin of the United States, and further recites that the conveyance is made "subject to that certain mortgage of two thousand two hundred and seventy-five dollars executed by Helen Grot and her husband to Thomas S. Krutz, September 1, 1890, and payable September 1, 1895, ínterest payable thereon on the first days of March and September." The debt secured by the mortgage having matured and remaining unpaid, respondent Ordway commenced this action to foreclose the mortgage, and made the appellants Patrick and Victoria M. Downey defendants therein, under an allegation of the complaint to the effect that appellants had assumed and agreed to pay said mortgage, and in the complaint a personal judgment was asked against said appellants for the amount due upon the note: There is no assumption clause contained in the deed, but upon the trial of this action, over the objection of the appellants, plaintiff was permitted to introduce parol testimony for the purpose of showing that, as a part of the consideration for the deed of conveyance referred to, the appellants agreed with their grantors to pay the mortgage 414 debt. The court rendered judgment against the appellants for the full amount of the mortgage debt, and entered a decree of foreclosure, and for any deficiency. The appeal is from such judgment and decree. The assignments relied upon for a reversal are: 1. That the court erred in permitting oral testimony tending to establish a contract to assume the mortgage debt; and 2. That the evidence was insufficient to justify the finding of the court that the appellants assumed or agreed to pay the mortgage. It is the contention of the appellants that the testimony which was admitted over their objection tended to change, add to, and enlarge the effect of the written contract or conveyance, and that it is not permissible to establish a contract of assumption by parol. In Don Yook v. Washington Mill Co., 16 Wash. 459, we held that a promise by the purchaser of certain sawlogs, as part consideration therefor, to assume and pay the indebtedness of the seller to a third party, might be shown by parol evidence, notwithstanding the bill of sale of the logs, while expressing a good consideration, made no mention of the purchaser's promise to pay the indebtedness to such third party. After a careful examination of the authorities, we think that while an agreement to assume the mortgage is usually established by a stipulation to that effect contained in the deed, the great weight of authority is that a verbal contract of assumption is enforceable, that it is not merged in the deed, and is not contradictory but independent of it. It is merely an additional agreement, and not at variance with the terms of the deed. In 2 Devlin on Deeds, section 1073, the author says: "It is not necessary that the promise of the grantee to assume the payment of an encumbrance as a part of the consideration for which the deed is made should be in writing. 415 A verbal promise to do so is valid, and equity will enforce it either at the instance of the grantor or the holder of the mortgage." And the proposition thus laid down is fully sustained by the authorities: Strohauer v. Voltz, 42 Mich. 444; 2 Warvelle on Vendors, 663; Wiltsie on Mortgage Foreclosure, sec. 224; Merriman v. Moore, 90 Pa. St. 78; McDill v. Gunn, 43 Ind. 315; Lamb v. Tucker, 42 Iowa, 118; Taintor v. Hemmingway, 18 Hun, 458; affirmed, 83 N. Y. 610; Moore v. Booker, 4 N. Dak. 543; Wilson v. King, 23 N. J. Eq. 150; 1 Jones on Mortgages, 5th ed., sec. 750; Drury v. Tremont Imp. Co., 13 Allen, 168; Society of Friends v. Haines, 47 Ohio St. 423. See, also, note to Klapworth v. Dressler, 78 Am. Dec. 84, and additional authorities there cited. The consideration recited in the deed is "for the purpose merely of giving it effect as a conveyance, and that for any other purpose parol evidence may be given to show that the real consideration was greater or less than the sum named": Per Cooley, J., in Strohauer v. Voltz, 42 Mich. 444. And that great judge adds that the cases holding this view "are not . . . . out of harmony with the general rule which excludes parol evidence to control writings." Gordon v. Parke etc. Co., 10 Wash. 18, is not at all applicable to the question we are now considering, either upon the facts or the principle involved. But while the agreement of assumption may rest in parol, the promise to pay must be established by evidence that is clear and conclusive, and it cannot be established by inference. In the present case, the only evidence introduced was the deeds and mortgage already referred to, and the testimony of respondent Christ R. Frasch and appellant 416 Patrick Downey. On behalf of the respondents, Frasch testified that as a part of the consideration for the conveyance to Downey, he (Downey) promised and agreed to pay the mortgage debt, while, on the other hand, Downey testified just as positively that he made no promise or agreement to do so. So far as the record discloses, these parties were entitled to equal credit, and their interest in the result was equal. There are no circumstances discernible which enable the court to say which one testified truthfully and which one falsely. But the burden was upon the plaintiff to establish the agreement by evidence that was clear, satisfactory, and convincing, and this we think he has failed to do. The judgment and decree will be reversed and the cause remanded, with directions to the lower court to enter judgment dismissing the action as to appellants, with costs. Anders, Dunbar, and Reavis, JJ., concur. ON PETITION FOR REHEARING. GORDON, J. In his petition for rehearing, counsel for the respondent urges that, assuming the evidence on the trial to be evenly balanced, this court should not disturb the findings. Ordinarily, the rule for which he contends prevails, but in this case we think the burden was on the respondents to establish the oral agreement by a clear preponderance of the evidence. Hamar v. Peterson, 9 Wash. 152, and Skeel v. Christenson, 17 Wash. 649, presented different issues, and the rule announced in those cases in nowise conflicts with the holding in the present case. Our attention is also directed to an inadvertence occurring in the opinion by which the action was directed to be dismissed as to the appellants. The intention was to reverse the judgment of the superior court only in so far as it awarded a personal judg ment against 417 the appellants, and not to disturb the decree of foreclosure and with this modification the petition will be denied. Scott, C. J., and Anders, Dunbar, and Reavis, JJ., concur. OF.-An MORTGAGE-AGREEMENT TO ASSUME-FORM oral promise by the purchaser of land to assume and pay the mortgage thereon is sufficient and may be enforced in equity by the grantor or the holder of the mortgage: Monographic note to Klap worth v. Dressler, 78 Am. Dec. 84. See Bolles v. Beach, 22 N. J. L. 680; 53 Am. Dec. 263. The assumption of a mortgage debt by a purchaser of land may be shown by parol evidence: Bensieck v. Cook, 110 Mo. 173; 33 Am. St. Rep. 422. SINGLY V. Warren. [18 WASHINGTON, 434.] JUDGMENTS-EFFECT OF REVERSAL ON PURCHASER.-An execution plaintiff who holds a sheriff's certificate of sale is not a purchaser in good faith in the sense that he is entitled to retain property purchased by him under a judgment subsequently reversed. His title is divested by the reversal, and his grantee, though not a party to the action, nor cognizant of the defect in title, is not a purchaser in good faith, and acquires no greater rights than the judgment plaintiff had. Crow & Williams and Blake & Post, for the appellant. Graves, Wolf & Graves, for the respondents. 434 ANDERS, J. This action was intstituted by appellant to recover the possession of certain real estate in the county of Spokane. Both parties claim title through Albert English 435 and Sylvester S. Callahan, each of whom was formerly owner of different portions of the land. On April 28, 1894, English and Callahan sold the premises in controversy to one Rilda Grinstead, a part of the consideration being the assignment and transfer of a certain judgment held by Miss Grinstead against the South Harbor Land and Improvement Company. In September of the same year, English and Callahan sued Miss Grinstead, in the superior court of Spokane county, to enforce a vendor's lien upon the land, on account of alleged misrepresentations on her part concerning the value of the judg ment aforesaid. They recovered a judgment against her in accordance with the prayer of the complaint. She thereupon appealed to this court, where the judgment was reversed on October 21, 1895, and their complaint was ordered dismissed, after a hearing upon the merits. The judgment in the lower court was rendered on June 4, 1895. Prior to that time, and while the cause was pending in the superior court, and on January 25, 1895, Miss Grinstead conveyed the land in question to one Ames, who, on February 25, 1895, conveyed it to the appellant here. It is through these conveyances that the appellant claims title. Miss Grinstead's appeal was effected on July 18, 1895, by the filing of notice of appeal and a bond for costs, which did not supersede the judgment. After the appeal had been |