1 Johns. Ch. 409 | New York Court of Chancery | 1815
The controversy resolves itself into these two questions:
1st. Whether Chéesebrough and others are bound to contribute towards the payment of the mortgage ?
2dly'. If they are, then what is to be the rule. of contribution ?
1. The weight of testimony is decisive in proof of the agreement and understanding of all the parties to the bond and mortgages, that the payment of the 1,902 dollars and 78 cents, for which the receipt was given by Bacon, and the certificate of discharge by Marvin, was to be applied to the discharge of the second, and not of the first, instalment. This appears from the depositions of Bacon, Cook, and G. Van Schoonhoven, and from the certificate itself. I see no room to doubt of the intention of the parties, or of the validity of the arrangement. It was one which they were competent to make, and it was evidently made in good faith, and for their mutual convenience, without any intention injurious to others. The first mortgage was, therefore, absolutely discharged, and the second mortgage remained binding as a security for the first instalment; and it cannot now be questioned, or denied, to be a subsisting encumbrance, unless the purchaser, under the judgment, can show some equitable right arising out of the circumstances of the case, to be protected from its operation.
I admit, as a principle of equity, that if a creditor has a lien on two different parcels of land, and another creditor has a lien of a younger date on one of those pareéis only, and the prior creditor elects to take his whole demand out of the land on which the junior creditor has a lien, the latter will be entitled, either to have the prior creditor thrown
Nor have Cheesehrough and others any peculiar on their part, to entitle them to set up the discharge of the first mortgage as an equitable bar to contribution. They came in as purchasers at the sheriff’s sale long after the discharge had taken place, and with notice of that fact, and of the existence of the second mortgage. They were, .accordingly, duly apprized of the condition of the subject which they purchased, and they had even taken the advice of council, whether the second mortgage was a valid and subsisting encumbrance. And, before the commencement of their suit, they had admitted its validity by offering to contribute to its discharge, and actually tendering in money what they deemed their just proportion. Under all these circumstances, they have no equity as against the second mortgage; and I am of opinion, .on every view of the point, that the mortgage is not discharged, and that the owner of it is entitled to have it satisfied out of the lots which it originally covered.
2. The rule of contribution between the parties, as owners of the different lots, must be the actual relative value of the lots, and this value is to be ascertained by the testimony of witnesses, in preference to estimating it by the price at which they were respectively purchased at the sheriff’s sale. Such sales are by no means a sure and certain test of value; and I see no good reason why we should depart from the better standard, and adopt this precarious one, which is liable to constant variation, and must depend, in a great measure, upon contingencies. The object of the principle of contribution is equality in the support of a common burden, and the law upon this point, as Lord Coke observed in Sir Wm, HarlerPs case, is “ grounded upon great equityand equity has a regard to the true value, and not one depending upon
Lot No. 133 $700
134 2,500
135 300
138 550
139 400
140 300
A reference must, therefore, be made to a master, to compute the sum due from the plaintiffs, Cheesebrough and, others, as purchasers of lots No. 134. and 139., on this ratio of contribution towards satisfaction of the principal and interest due on the first. instalment of the bond, and also the costs of advertising under the power contained in the said mortgage. The question of costs, in these suits, is reserved until the coming in of that report.
Decree accordingly.