64 Vt. 305 | Vt. | 1892
The opinion of the court was delivered by
The mortgage given to Dr. Dewey, now owned by the orator, and sought to be foreclosed, and the mortgage to the defendant, Mary A Cooper, cover the same premises, and were executed the same day and on the same occasion, but that to the orator was first executed. Mary A Cooper had no knowledge of the execution of the mortgage held by the orator, and, without being put upon inquiry in regard to the same, placed her mortgage first upon record. This gave her mortgage the precedence, unless there existed some other facts or elements, which gave to the orator’s mortgage a controlling equity. Some claim has been made, in this behalf, because the'mortgage held
But it is contended that the mortgage held by the orator has-the greater equity because it was given to secure the payment of a present debt, while that given to Mrs. Cooper was to secure the life support and maintenance of the mortgagor and his wife. This equity rests upon the principle, that it' is the duty of & debtor to pay his debts from his property, rather than to appropriate it for his own advantage by way of future life support. When a person takes the property of a debtor agreeing to furnish him life support therefor, if he has existing debts and not other property with which to pay them, although there be no actual fraud, the law holds such person guilty of constructive fraud, and will allow the debtor to satisfy his debt out of the property taken, against the rights of such taker. But no such fraud arises unless; it appears affirmatively that the debtor did not retain other property sufficient to pay his then existing debts. The case is silent whether the mortgagor, did or did not, have property sufficient to pay his debts, other than that covered by the mortgages. The court will not presume the want of other property to enable it to> xiJ.se a constructive fraud.
Decree affirmed and cause remanded.