29 Vt. 32 | Vt. | 1856
It is admitted that the plaintiffs are entitled to recover in this case unless the defendants have shown a legal title to the premises in question, under what is termed the Arms mortgage. To that single question, therefore, our inquiry is confined. It appears from the -case, that on the 17th of May, 1831, Jonathan Arms conveyed to Luman and Norman Rublee and Otis Standish a lot of land, of which the premises mentioned in the declaration are parcel, and that he took from them a mortgage deed of the same premises to secure the payment of the notes therein described. The defendants, in order to prove their title to the premises, gave in evidence a deed from L. and N. Rublee to Moses Hale, dated September 22, 1835, conveying a portion of the premises included in the Arms mortgage, and which is now owned by Mr. Langdon. They also gave in evidence the original mortgage deed given by the Rublees and Standish to Jonathan Arms and the notes therein mentioned, together with a quit-claim deed from Jonathan Miller as administrator of Jonathan Arms to Mr. Langdon, conveying all the premises described in that mortgage deed, and which included the premises claimed by the plaintiffs. The consideration of that quit-claim deed was the payment by Mr. Langdon of the balance due on that Arms mortgage, which he paid for the purpose of protecting from that mortgage, that portion of the premises which had been conveyed to him by Mr. Hale. By that payment and quitclaim deed, Mr. Langdon obtained the same interest and title to the premises mentioned in that mortgage deed, which Mr. Arms had in his life time, or which his administrator had after his decease. That Mr. Arms in his life time, and that Mr. Miller, as bis administrator, had the legal title in those premises is clearly settled by the authorities. In the cases of Atkinson v. Burt, 1 Aik. 329, and Lyman v. Mower, 6 Vt. 345, it was held, that the mortgagee, after condition broken, had the legal title and the right of possession to the mortgaged premises, and could sustain ejectment against the motgagor and his grantees without even a notice to quit. The Comp. Stat. 344, sec. 29, provides that “ a debt secured by mortgage and the mortgaged premises, belonging to the estate of any deceased person as mortgagee, or assignee of the mortgagee, when such mortgage shall not have been foreclosed in the
The important inquiry in the case, therefore, arises whether there was any evidence in the case tending to defeat that legal title of Mr. Langdon. The court instructed the jury, that the question for them to decide on the evidence was, whether, when the money was paid on the Arms mortgage by Mr. Langdon, he intended to become the purchaser of that mortgage, or whether it was understood as a payment or extinguishment of it, and with no intent to keep the same on foot as^ a subsisting incumbrance on the the premises; that if a purchase was not intended, but a discharge and satisfaction of it was the object of that payment, that the defendants under that quit claim deed had no legal title to the premises, and that the plaintiffs were entitled to recover. We
The testimony introduced by the plaintiff in relation to the note and mortgage given by Rublee to Langdon on the 5th of February, 1842, for the money paid by him to Mr. Reed on the Arms mortgage was important in the case ; and the question was properly submitted to the jury, whether the notes were given in payment for the money lie had so advanced. If the notes were given and received for that purpose, it would, prima facie at least, operate as payment of that debt, and defeat the legal title óf Mr. Langdon to those premises under the Arms mortgage. Though the conveyance by Miller, as administrator of Arms, to Langdon conveyed the legal title of those premises, yet he had but the title of the mortgagee, and that title was subject to be defeated whenever he was repaid by Rublee, the mortgagor, or by any other person having an interest in the premises, the amount due on that mortgage debt. The doctrine is well settled in this state that a promissory note given on a debt which accrued at the time the note was given, or