courts of the several States, because it is clearly settled in this court that he could not." The ground of the refusal of a right of action at law is the want of privity of contract, but even "in equity, as at law, the contract of the purchaser to pay the mortgage, being made with the mortgagor and for his benefit only, creates no direct obligation of the purchaser to the mortgagee."

Of course, no agreement between the mortgagor and his grantee that the latter shall assume the mortgage debt, can change the relations of the mortgagor and mortgagee, and require the latter to treat the mortgagor as a mere surety for the debt, without the assent of the mortgagee (Shepperd v. May, 115 U. S. 505, 511), but when the assent of the mortgagee has been given, equity, by a quasi subrogation, and in order to avoid a multiplicity of suits, gives to the mortgagee the benefit of all the collateral obligations for the payment of the debt which the surety (mortgagor) holds for his indemnity. This right of the mortgagee is not the result of any contract between the grantee with the mortgagee, or with the mortgagor for his benefit, nor of any original equity residing in him. "He is allowed by a rule of procedure, to go directly as a creditor against the person ultimately liable, in order to avoid a circuity of action, and save the mortgagor, as the intermediate party, from being harrassed for the payment of the debt, and then driven to seek relief over against the person who has indemnified him, and upon whom the liability will ultimately fall. The equity on which this relief depends is the right of the mortgagor against his vendee, to which he is permitted to succeed by substituting himself in the place of the mortgagor." Crowell v. St. Barnabas Hospital, 12 C. E. Green, 655, 656; Keller v. Ashford, 133 U. S. 610, 624-5. The same conclusion is reached in an able opinion by Cardwell, J., in McIlvane v. Big Stony L.

Co., 105 Va. 613, a case very similar to the instant case, and in which the prior Virginia cases are reviewed and discussed.

The following cases in this State bearing on this question are given for convenience of reference: Ross v. Milne, 12 Leigh (39 Va.) 204; Vanmeters v. Vanmeters, 3 Gratt. (44 Va.) 148; Jones v. Thomas, 21 Gratt. (62 Va.) 96; Stewart v. James River & K. C. Co., 24 Gratt. 294; Willard v. Worsham, 76 Va. 392; Osborne v. Cabell, 77 Va. 462; Taliaferro v. Day, 82 Va. 79; Francisco v. Shelton, 85 Va. 779; Tatum v. Ballard, 94 Va. 370; Ellett v. McGhee, 94 Va. 377;Newberry Land Co. v. Newberry, 95 Va. 120; Cosmopolitan Life Ins. Co. v. Koegel, 104 Va. 619; Casselman v. Gordon, 118 Va. 553.

Counsel for the defendant in error insists that the right to maintain this action at law is sustained by Cosmopolitan Life Ins. Co. v. Koegel, supra; but the facts of that case do not warrant the conclusion. In that case, the Royal Tribe of Joseph, a benefit society without stockholders, desired to go out of business as a separate entity, and to consolidate with the Cosmopolitan Life Ins. Co., and in order to effect this object and fully protect its members who were entitled to its assets, it entered into an agreement with the insurance company whereby it transferred to that company all of its assets of every kind and its business and good will, and, in consideration of such transfer, the insurance company, among other things, assumed "all liabilities of the said Royal Tribe of Joseph of certificates of membership upon which death had been reported, and which were at the date of said contract unpaid." At the date of the contract, the death of Koegel, a member of the Royal Tribe of Joseph, had been reported and the policy on his life remained unpaid. An action was brought by the beneficiary against the insurance company, and the

defense of want of privity was set up by the company, but the plaintiff recovered judgment for the amount of the policy in the trial court, and that judgment was affirmed by this court. Upon this point, Cardwell, J., delivering the opinion of the court, said: "But the defendant insists that as the plaintiff is a stranger to the consideration for which that promise and agreement was made, she cannot maintain this action, and that it could be maintained by the Royal Tribe of Joseph alone-this upon the theory that there must be a privity between the plaintiff and defendant in order to render the defendant liable to an action by the plaintiff on the contract. This is undoubtedly the general rule; but it has its exceptions like many other general rules."

He then proceds to discuss the subject, and distinctly places the right of recovery on the ground of the wellestablished exception to the general rule, that wherever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. In such case, it is said, the law creates the privity and implies the promise necessary to support the action. This exception is of long standing and is as well established as the rule itself.

In the Koegel case, Cardwell, J., uses the following language: "In the one class of cases the principle is applied where it is money that the defendant has which equitably belongs to the plaintiff, and in the other where the defendant has either money or property in consideration of which he has promised to pay the debt due the plaintiff by his debtor, from whom the defendant acquired such money or property, and to whom the promise was made, and in either case the law creates the privity and implies the promise necessary to support an action on the part of the plaintiff to recover his debt of the defendant."

The rule and the modification thereof is well stated by Staples, J., in Jones v. Thomas, 21 Gratt. (62 Va.) 96, 101, hereinbefore quoted.

In the instant case there was no property or money in the hands of the grantee. The property had been sold to pay the mortgage debt, and the action was brought to recover the deficiency.

The same rule is stated in 15 Ency. Pl. & Pr. 514, citing many cases. See also National Bank v Grand Lodge, supra.

In Baltimore & Ohio R. Co. v. Burke, 102 Va. 546, Keith, P., uses this language: "If the defendant has money in his possession which in good conscience he ought to pay to the plaintiff, the law will imply a promise upon the part of the defendant to do his duty, and to pay the money; and this implied promise is as effectual to create privity between the parties as an express promise would be."

On the other hand, it is said that where the contract is primarily for the benefit of the parties thereto, the mere fact that a third person would be incidentially benefited does not give him a right to sue for its breach. Where the right of the creditor is derivative only, his remedy is in equity and not at law. Simpson v. Brown, supra; Willard v. Wood, 135 U. S. 309; Davis v. Calloway, 30 Ind. 615; Williston's Contracts, 260; 15 Ency. Pl. & Pr. 516 and cases cited.

Whether or not Thacker was principal or surety for the debt, and, if surety only, whether he was released by giving time to the principal without his consent, cannot be considered. This was a motion to dismiss for want of jurisdiction of the subject matter, and matters affecting the merits of the case cannot be considered.

We are of opinion that a court of law is without jurisdiction in the premises, and for that reason the judgment

of the circuit court must be reversed, but without prejudice to the appellee to assert any claim it may have in a court of equity.

Reversed.

WASHINGTON & OLD DOMINION RAILWAY v. F. S. ROYSTER GUANO COMPANY, EX REL., &c.

(Richmond, January 24, 1918.)

1. RAILROADS-Construction of Siding-State Corporation Commission-Pleading.-Where the petition filed before the State Corporation Commission prayed that the railway be required to extend or operate a certain siding, or that the petitioner be allowed to construct it and the railway required to operate it, and it appeared from the evidence that the general public would be interested in the siding and the railway had declined an offer by the petitioner to bear the expense: Held, that an order requiring the railway to construct the siding does not go outside of the issue as made up between the parties, even if the Corporation Commission, in proceedings of this character can be held to strict rules of pleading as to the scope of orders made by it. 2. STATE CORPORATION COMMISSION-Jurisdiction-Construction of Siding-Interstate Commerce.-Where a spur track or siding sought to be re-established would be used indiscriminately for both interstate and intrastate commerce, and the restoration of the track, instead of constituting a burden upon interstate commerce would be in aid of it and enable the company to handle both classes of business more efficiently, the State Corporation Commission has jurisdiction to compel the railway company to construct the track.

3. RAILROADS-Public Duties-Re-Construction of Siding.-It is the duty of a railroad company to reconstruct a siding or spur track which was in existence when it leased the property, the land for which was acquired for that special purpose, and which is necessary to enable the company properly to discharge its public duties. The petitioner, being a part of the public, is entitled to facilities equal to those of his competitors in business, and the railway company has no right to discriminate against its business by refusing to maintain the facility.

4. IDEM Public Duties Revenues - Interstate

Commerce.-The

rights of shippers and the duties of a railroad company cannot be determined by the consideration that revenues derived by the company on shipments from a point outside of the State are less than they are on shipments from a point within the State. To admit such a proposition is to admit that the company has the right to discriminate against interstate commerce.

Appeal from State Corporation Commission.

Affirmed.