58 Vt. 90 | Vt. | 1886
The opinion of the court was delivered by
This cause was heard on demurrer to the bill. The first question made by the defendant in argument
It is admitted that on the 9th day of February, 1881. one Owen M. Kane executed a mortgage deed to the oratrix of certain premises situate in Rutland, in the county of Worcester, to secure the payment of three notes made by said Kane, and payable to the oratrix, for the sum of $233.33 each. Upon any default in the performance or observance of the conditions of said mortgage, the oratrix was authorized and empowered to sell said mortgaged premises, and the manner in which the sale should be conducted was specified in the deed. Default having been made in the performance of the conditions of said mortgage, the oratrix, on the 3d da.y of December, 1881, sold said premises at public auction, and in making said sale pursued strictly the power given her in said mortgage and the statute under which the sale was made. At the time said mortgage was given to the oratrix the premises were encumbered by a previous mortgage given to the Worcester Institute for Savings to secure the payment of $1,500 and interest; and only $1.50 was realized for her interest in the premises. On the 20th day of June, 1881, the said Kane, by his warranty deed of that date, conveyed the same premises to the defendant, which deed contained the usual covenants of' seizin and warranty, with the following exceptions and agreement, viz.: ‘£ Except a mortgage to the Worcester County Institute for Savings for $1,500 and accrued interest, and a mortgage for $700 to Hattie L. Davis and accrued interest, which the said grantee herein assumes and agrees to pay, and the taxes for the present year.” The defendant accepted said deed, and took possession of the premises described therein, whereby it is claimed that the debt so •described in said deed as being due to the oratrix became
It is clear that the court has j urisdiction. The claim of a right to subrogation could only be determined in a court of equity.
The court, then, having jurisdiction, it is to be determined what relief, if any, the orators are entitled to. When one purchases land encumbered by a mortgage, he acquires by the purchase the equity of redemption, and incurs no personal liability to pay the mortgage; but if there are words in the deed importing that the grantee is to pay the mortgage to which the land is subject, he is deemed to have entered into an express undertaking to do so by the mere acceptance of the deed, without having signed it. Jones on Mortgages, s. 1713; Pomeroy’s Equity Jurisprudence, s. 1206. Here, as we have seen, there was an express agreement of the defendant to pay. The promise was made upon good consideration, and the orators are entitled to have its performance enforced. There can be no doubt of the right of the oratrix to be subrogated to the rights of Kane, and if it were necessary the court would decree that she might be so subrogated.
Treating the mortgaged premises as the primary fund for the payment of the debt, they could only operate as satisfaction to the extent of their value, and the defendant is
The pro forma decree of the Court of Chancery sustaining the demurrer, and adjudging the bill insufficient, is reversed, and cause remanded with leave to the defendant to answer by paying the costs pending the demurrer; and if he does not answer, a decree is to be entered for the orators according to the prayer of the bill, for such sum as may be found due upon said notes, with costs.
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