34 Vt. 256 | Vt. | 1861
This is a suit by petition in chancery for the foreclosure of three certain mortgages. After answer and traverse, the cause was referred to a referee to ascertain and report the facts in respect to the points at issue, and those facts appear in his report. The petitioners having by their counsel abandoned, at the hearing before the referee, all claim for a foreclosure upon the mortgage from Alvah E. Hill and his wife to Chloe Robinson, set forth and described in the petition, the questions made in the case are limited to the claim of the petitioners for a
I. The first question which arises in the case is whether the petitioners are entitled to a decree oí foreclosure on the mortgage executed by Hill and wife to the petitioner Harriet M, Bartlett. It is claimed on the part of the defendant that the two mortgages which are now sought to be foreclosed — one being executed to the wife and the other to the husband — could not properly be joined in the same petition. An objection like this, if not raised upon the pleadings, will, in general, not be regarded when made at the hearing, and in this case the defendant not having stated the objection in his answer, nor by demurrer or plea, so as to have given the petitioners an opportunity to apply for leave to amend their petition, we think that it ought not now to affect the cause. Story’s Eq. PI., §271, 544, and notes. The defendant further claims that as he has title to the mortgaged premises by virtue of a conveyance from Ghostling, executed on the 9th of July, 1857, which is stated in the report of the referee, the petitioners are estopped, as to him, by the covenants in the warranty deed from Loel Bartlett to Ghostling, which was executed on the 9th of March, 1857, from asserting any right of foreclosure on this-mortgage, executed to the petitioner, Harriet M. Bartlett, inasmuch as it was in force and outstanding at the date of her husband’s deed to Ghostling ; but we think that the estoppel claimed ¿ould only apply to an outstanding incumbrance arising from a:
II. The petitioners also claim to be entitled to a decree of foreclosure on the mortgage executed by Ghostling to Loel Bartlett on the 9th of March, 1857. The defendant’s answer denies any notice or knowledge of the existence of that mortgage at the time the premises were conveyed to him on the 9th of July, 1857. The certificate of the town clerk of Searsburgh on the record of the mortgage in his office, states that the mortgage was “received and recorded on the 9th day of March, 1857, at 9 o’clock, A. M.” Parol evidence was introduced before the referee, and received notwithstanding objections made on the part of the petitioners to its reception, tending to show that this certificate was in fact false and, on that evidence, the referee found,-and has reported,
As the petitioners prevail in respect to the mortgage executed by Hill and wife to Harriet M. Bartlett, and as the defendant prevails in respect to the mortgage executed by G-hostling to Loel Bartlett, there should be a severance and apportionment of the costs of suit between the parties according to the usual practice in such cases.
The decree of the Chancellor dismissing the petition is reversed, and the cause is to be remanded to the Court of Chancery, with directions to enter a decree of foreclosure in favor of the petitioners on the mortgage executed by Hill and wife to the petitioner Harriet M. Bartlett, and dismissing the petition as to the other two mortgages described and set forth therein, and apportioning the costs of suit between the petitioners and defendants according to the usual practice in cases where each party prevails in part only.