13 R.I. 595 | R.I. | 1882
Previously to December 18, 1875, Patrick and Mary Duke were the owners of six lots of land, lying in the city of Providence, which were subject to three mortgages, to wit: first, a mortgage to the Mechanics' Savings Bank, given April 11, 1871, to secure a note for $4,800; second, a mortgage to the Mechanics' Savings Bank, given June 22, 1875, to secure a note for $2,200;third, a mortgage to the defendant, Bernard McGuiness, given October 28, 1875, to secure a note for $125. These three mortgages were duly recorded. On December 18, 1875, the Dukes, having previously sold one of the six *596 lots to the complainants at public auction for $775, conveyed it to them by warranty deed. On the same day the Mechanics' Savings Bank gave the complainants a deed wherein it quitclaimed and released all its right, title, and interest as mortgagee in the lot to them. Their deeds were duly recorded. The Mechanics' Savings Bank released, as aforesaid, in consideration of $537.48, part of the purchase money for the lot, received by it from the complainants and applied in reduction of its mortgages. The complainants entered into possession, and paid taxes for three years. Soon afterward the Mechanics' Savings Bank sold the remaining five lots, under the power given in their first mortgage, and did not realize from the sale enough to pay both of its mortgages, neither of which has ever been formally cancelled or discharged. Afterwards the defendant, Bernard McGuiness, advertised the lot bought by the complainants for sale under his mortgage. The complainants, who bought in ignorance of the mortgage, then first learned of its existence. The advertisement, in consequence of some conference between McGuiness and the counsel for the complainants, was temporarily withdrawn. Subsequently, however, the advertisement was renewed, and the lot was sold at public auction under the McGuiness mortgage to one Michael Gormley, for $190, and conveyed to him by quitclaim deed January 8, 1880. On February 9, 1880, Gormley conveyed to one Giles M. Nichols for $500, in money and other land. On May 18, 1880, Nichols conveyed to the defendant, Edwin D. McGuiness, a son of Bernard, for other lots received in exchange. The complainants, who question the good faith of these conveyances, claim in their bill that they are entitled, under the quitclaim deed from the Mechanics' Savings Bank, to have by subrogation the benefit of the lien which the bank had on the lot by force of its mortgages, to at least the extent of what they paid the bank on account of them, and pray that the said lien may be enforced against the defendants.
It is well settled that, in equity, where a mortgage passes by assignment to a purchaser of the equity of redemption, the two estates will not merge, if it is for the interest of the purchaser to keep them distinct, for protection against an intervening incumbrance, unless it be very clear that merger was intended. Knowles *597
v. Carpenter,
In this view of the case Bernard McGuiness is an unnecessary party, and as to him the bill must be dismissed with costs.
Decree accordingly.