Barrett v. Sargeant, 18 Vt. 365

Barrett v. Sargeant

18 Vt. 365 | Vt. | 1846

The opinion of the court was delivered by

Bennett, J.

It is alleged in the bill, that one Robert Barrett, being, in September, 1833, the owner of a certain tract of land, mortgaged the same to one Edward Manning, to secure four promissory notes, and that Manning assigned these notes, before any payment was made upon them, to one Ezra Woodworth, accompanied with a parol agreement, that Woodworth should have the benefit of the mortgage; that in May, 1839, the mortgagor (Robert Barrett) conveyed the mortgaged premises to the orator, who assumed, as between himself and the mortgagor, to pay the mortgage notes; and it is alleged, that those notes have passed into the hands of the defendant William K. Manning, who now holds them as security for moneys, which he has advanced to the executors of Woodworth. The other defendant, (Sargeant,) it appears, after the mortgagor had conveyed his equity of redemption to the orator, *369attached the land upon process against Edward Manning, the original mortgagee, and, having obtained judgment, levied his execution upon the land, and has his action of ejectment now pending against the orator to recover possession. The primary object- of the bill is, to obtain an injunction of that suit, in order that the orator, standing in the place of the mortgagor, may with safety pay the incumbrance upon the land, and thereby be quieted in his title.

The first question presented is, does the orator need any relief, as against Sargeant, and is he entitled to any in a court of Chancery 1 Though it appears, that, prior to the attachment by Sargeant, the executors of Woodworth had brought an action of ejectment on the mortgage deed, in the name of the original mortgagee, and had obtained judgment by default, yet there was no foreclosure of the equity of redemption, and possession was taken of the premises by the assignee of the mortgagee.

The orator has argued correctly, that Sargeant could gainnotitle to the land by the attachment and levy of execution against Edward Manning. The principle is well settled, that a mere mortgagee has no attachable interest in the lands mortgaged, but holds them only as a pledge, or security, for the debt, possessing but a mere chattel interest, at least as to third persons, so long as they remain such security; and that the mortgage is but an incident to the debt, and goes with it; it cannot exist without it; and when the debt is can-celled, the legal effect of the mortgage is cancelled also. Consequently, Sargeant gained no possible title, in law, or equity, against the mortgagor, or his assignee. Most clearly, then, he can maintain no action of ejectment against the orator. Why then should the orator come into chancery to enjoin him ?

The principle is unquestioned, that any party, having a clear and ample remedy at law, cannot transfer the subject matter of the controversy to a court of equity. He must and should be left to his remedy at law. The orator does not come here, because of any imperfection in his deed from the mortgagor; he does not even allege that his deed has but one witness; and he must stand on the allegations in his bill, and cannot make a different case by his evidence. If Sargeant were in possession of the premises and the orator’s title were imperfect at law, because there was but one witness to his deed, he might need the aid of a court of equity; but he avers no such fact in his bill.

*370The bill, it is'true, has been taken as confessed against William K. Manning; but no reason exists why he should be enjoined from collecting the notes. The bill alleges, that the notes passed into his hands from the assignee of the mortgagee, and that part of them remain unpaid. The orator, on paying what is due, is entitled to hold the premises discharged from the incumbrance. The bill does not appear to have been drawn, in order to let in the orator to redeem ; but we think it may with propriety be changed into such a bill. But the executors of Woodworth must be made parties to it. The mortgaged notes belong to his estate, and the defendant Manning, as the bill alleges, holds them only as security for money advanced for the executors.

The decree of the chancellor, as to both defendants, must therefore be reversed, and the case be remanded to the court of chancery, with directions to dismiss the defendant Sargeant with his costs in this court, to be decreed to him, and that the orator be permitted to retain his bill against the defendant Manning and amend the same, by adding new parties, in the discretion of the chancellor, — and in that event to be proceeded with in that court. We think the costs already accrued in the court of chancery should be decreed to neither party, and that Sargeant is entitled only to his costs in this court; for he was in some measure in the wrong, in attempting to gain a title to the premises by levy upon them as the property of Edward Manning.