15 Vt. 576 | Vt. | 1843
The opinion of the court was delivered by
The object of this bill is to foreclose a mortgage, executed by Erastus Chamberlin to the orators and, also, to compel the defendants to pay the sum due on a mortgage executed by Raymond Chamberlin to Ephraim Lacy, which the orators have been compelled to pay. Or if the mortgage, executed by Erastus Chamberlin, does not include certain lots, No. 1 and 2, — that the mortgage may be considered and decreed as a lien on Nos. 9 and 10, which were received by Little in exchange for Nos. 1 & 2, because Nos. 1 and 2 were inserted, by mistake, instead of Nos. 9 and 10.
It appears that, in September, 1806, Raymond Chamberlin executed a mortgage deed to Ephraim Lacy, of a part of lots No. 1, 2 and 9, with other lands ; that, in 1811, Raymond Chamberlin exchanged with Edward Little, and put him into possession of Nos. 1 and 2, and received in exchange therefor, that part of No. 9 of which he was not then the owner, and, also, No. 10. In 1815, Raymond deeded to Erastus, and in 1818, Erastus mortgaged to the orators.
If the orators are entitled to foreclose this mortgage against the defendant, Little, it must be on the ground that Little is assignee of the mortgagor, Erastus Chamberlin ; for if Little holds by an elder, or independent, or adverse title, the orator cannot make him a party to a bill of foreclosure, as he could be under no legal or equitable obligation to pay that mortgage. The defendant, Little, is not assignee of the mortgagor, Erastus Chamberlin, in consequence of any deeds executed by Erastus to Little. The only deed from Erastus, in evidence, is the one executed by him to Little in 1826, and, as all the land described in Erastus’ mortgage to the orator, which was included in the deed of Erastus to Little, in 1826, was reconveyed by Little to Erastus in 1S29, the
The title of the defendant, Little, is wholly adverse to that of the orators under the mortgage from Erastus. In 1811, Edward Little made the exchange with Raymond Chamberlin, by virtue of which, Little went into possession, claiming these lots as his own. In May, 1815, E. Little conveyed to Josiah Little ; and though it may be doubtful whether the deed, then executed by Edward Little, contained and conveyed the lands in question, yet we learn, from the testimony, that it was intended to convey these lots, and that Josiah Little immediately went into possession, claiming them as his own. Little being thus in possession, the deeds from Raymond and the heirs of Joseph Chamberlin, to Erastus, executed in July 1815, and in 1816, were inoperative and void by force of the statute of 1807, against purchasing lands of which another is in adverse possession ; and this effect is not obviated by the claim set up in the bill, that the deed from Raymond to Erastus was intended as a mortgage. The deed is absolute in its terms, and there is no proof that it was otherwise intended. Nor is this effect obviated by the fact that the exchange, made in 1811, was by parol. As possession immediately accompanied the exchange, and the parties entered into possession, claiming ownership, their respective possessions, for fifteen years, would have ripened into a perfect title.
The possession of Little being, then, adverse, no part of these lots, Nos. 1 and 2 passed to Erastus, or could pass by his mortgage deed to the orators. The orators are, therefore, not entitled, on the ground of the mortgage to Lyman, to any decree against the defendant, Little, for Nos. 1 and 2. The fourth part of No. 9 was released to them by Erastus, in 1836, and is not now in controversy.
The next question is, whether the mortgage of the orator should be corrected, so as to embrace Nos. 9 and 10, which were received, instead of Nos. 1 and 2.
The answer to this is, there is no evidence, whatever, of any such mistake ; and equity will not correct a mistake in a written instrument, except on clear and undoubted testimony. - On no ground, whatever, can the orators have any claim against the defendants, Little or Atkinson, on the
On the mortgage executed by Raymond Chamberlin to Lacy, called the Lacy mortgage, the equitable claim of the orators stands on different grounds. This mortgage was an incumbrance on Nos. 1 and 2, owned by Little, as well as on the other lands contained and described in the deed of mortgage from Erastus Chamberlin to the orators ; and if either were compelled to pay the same, they could call on the other for remuneration of an equitable portion of the money thus paid for their common benefit. The orators have been compelled to pay the whole amount of the mortgage incumbrance, and thereby have relieved the lands of the defendant from the incumbrance created by that mortgage, and what existed at the time of the parol exchange made between Edward Little and Raymond Chamberlin. According to the principle on which the court made the decree, in the case of Payne v. Hathaway, 3 Vt. 212, the defendant should pay his proportion, unless he has shown a good reason for not doing so, by his answer, and the testimony. The statute against purchasing lands when there is an adverse possession does not apply. But the defendants insist upon the statute of limitations, and upon the presumption arising from his possession, for fifteen years. Both of these defences are removed by the admission made by him, in his answer, that, in August, 1829, this mortgage was then an outstanding and existing incumbrance, which is equivalent to an admission that it was not paid, and, also, by the decree of foreclosure obtained by Lacy at the March term of this court, 1835, against Raymond Chamberlin, as well as against the orators. The debt to Lacy being thus unpaid, as appears by the admissions of Raymond Chamberlin, as proved by the decree, as well as by the admission of the defendant in August, 1829, neither the statute of limitations, nor the presumption arising from possession, could have prevented Lacy from obtaining the decree against the defendants, if they had been made parties to that bill, nor do they stand in the way of the orators’ claim in this bill.
It is objected that the decree made in the suit of Lacy against the orators, is not evidence, in this case, inasmuch as it has not been filed as an exhibit. It being stated in the
It is, however, urged that the orators cannot be treated as assignees of the Lacy mortgage, inasmuch as their mortgage did not contain Nos. 1 and 2, in consequence of the adverse possession of the defendant. The orators are not considered as the assignees of the mortgage as to those lots, for if they were such, they would be entitled to a foreclosure against the defendant for the whole sum of the Lacy mortgage. But it is on the ground that they have no claim to those lots, but have been compelled, in order to relieve their other lands from that incumbrance, to pay that mortgage, and thereby relieve the defendant from that incumbrance. We are, therefore, of opinion, that, for the proportion of the money paid by the orators on the decree obtained-by Lacy, in March 1835, the orators have a decree against the defendant; and this proportion was correctly ascertained and settled by the chancellor, and that the orators are entitled to relief under this bill, wherein they pray for a foreclosure of the Lacy mortgage, and also for such other relief as the facts or proof would warrant. The cost on the Lacy mortgage should be borne proportionably by the orators and defendant, as it was money which the orators were compelled to pay on an incumbrance on the lands therein described ; and the orators were in no fault, because Lacy did. not make the defendants parties to his bill. The security of Lacy being sufficient, without resorting to the defendants, he probably did not wish to involve himself in the controversy which has embarrassed these contending parties.
Upon the subject of dismissing Atkinson, with costs, we would observe that costs are so much within the discretion of the chancellor, that this court will rarely, if ever, alter or disturb a decree made by him, as to costs. We, however, see no reason why this discretion was not properly exercised in this case.
The decree of the chancellor is, therefore, affirmed, except