Bishop v. Allen

55 Vt. 423 | Vt. | 1883

The opinion of the court was delivered by

Rowell, J.

On the facts found, it was the mortgagors’ own fault if they did not know the full contents of the mortgage. There was no fraud on the part of the mortgagee, nor on the part of any one representing him. If the mortgagors were then content not to use the means of knowledge they had at hand, they and their assigns must now be content to stand to the mortgage according to its terms and import. Courts of equity do not sit for the purpose of relieving parties, under ordinary circumstances, who refuse or neglect to exercise reasonable care and prudence to protect themselves. Equity relieves the vigilant, not the negligent. 1 Story Eq. Jur. s. 146, n. 2, s. 200, a ; McDaniels v. Bank of Rutland, 29 Vt. 230, 238. The running clause must stand. But what is the interpretation thereof ? Its language is this : “ . . . and pay him all sums of money now due [from us] or that may be due from us hereafter.” It would seem that no great violence would be done to this language if it were held, without the aid of accompanying circumstances, to include- a several as well as a joint indebtedness. But when we consider that'at the .time of the execution of the mortgage no joint indebtedness in fact existed, and that it does not appear that any was then expected thereafter to exist; and especially when we consider that Mrs. Felton, when called upon by the administrator of the mortgagee to pay her account due the estate, refused because it was secured by the mortgage — thus showing how she understood the matter,— there can be but little question that said clause should receive the construction contended for by the petitioner. And this construction must prevail against the assignees of the mortgagors as well as against the mortgagors themselves. They were bound to take notice that a several indebtedness as well as a joint indebtedness might be secured by the mortgage. The case is unlike Tabor v. Cilley, 58 Vt. 487; invoked as conclusive against the petitioner on this point. There the mortgage described only $1,000 of present indebtedness, but contained a clause to secure future indebtedness, and a reformation of the mortgage to make it cover $1,750 of indebtedness existing at the time of its execution and intended to be secured thereby, was refused as against third persons who had acted in faith of the absolute statements of the mortgage as to the amount of present indebtedness secured thereby, and of the mortgagors’ statements as to the future indebtedness; while here the * mortgage on its face is not misleading, but may well be taken to secure a several as well as a joint indebtedness, and, at all events, contains enough to have put the assignees of the equity of redemption on inquiry in this behalf, which they do not seem to have made, nor does it appear that they have in any manner acted on the assumption that the mortgage secured only a joint indebtedness.

Decree affirmed, and cause remanded.