14 Utah 12 | Utah | 1896
Lead Opinion
It appears from the record that on December 17, 1890, the defendants Emily S. Page and E. J. Page borrowed from the plaintiff, Featherstone, the sum of $2,000, and gave him their note secured by a mortgage on the property in question. On August 26, 1891, the defendants Page and wife conveyed by warranty deed the said mortgaged property to defendants Brown and Emerson for the sum of $5,000, subject to the $2,000 mortgage of December 17, 1890, which the grantees jointly agreed to assume and pay. Brown and Emerson also paid to Page $1,000 in cash, and executed a purchase-money mortgage back to Page upon the property purchased for the sum of $2,000, as consideration for the premises conveyed to them. At the maturity of the $2,-000 mortgage, dated August 26,1891, defendant Emerson paid $1,200 thereon, and Brown gave to Page a new purchase-money mortgage, dated October .6, 1891,» upon his undivided half of the premises, for $800, to secure a part of the said purchase price, and Mrs. Page released t'he said $2,000 mortgage of August 26, 1891, of all of which Emerson had notice at the time. On March 1, 1892, Page assigned the said $800 mortgage to plaintiff Feather-stone, so that Featherstone then held both mortgages upon the property, to wit, the $2,000 mortgage which, both Brown and Emerson were obligated to pay, and the $800 purchase-money mortgage which Brown gave to Page upon his undivided half of the premises in order to release the former $2,000 mortgage upon which. Emerson was jointly liable. “On the 17th day of January, 1898/ there was due upon the note and mortgage of $2,000, given by said Emily S. Page to John Featherstone, December 17, 1890, the sum of $2,200, including interest, and thereafter, upon said day, said S. P. Emerson paid to the plaintiff $1,100 thereon, and tendered to plaintiff the balance due thereon if plaintiff would assign to Emerson
The errors assigned by the defendant Emerson raise the question of his right to subrogation to the former rights of the plaintiff in the $2,000 mortgage of December 17, 1890, as against Brown and Mrs. Page, and her assignee, the plaintiff, and the superiority of that right over the rights of Featherstone acquired under the $800 note and mortgage, although no tender or payment of the $800 mortgage had been made. Emerson claims that he is subrogated to the prior incumbrance to which the $800 incumbrance is inferior. The plaintiff contends, and the trial court held, that while Emerson was a surety for Brown as to one-half of the $2,000 mortgage of December 17, 1890, the equities of Featherstone, the plaintiff, as assignee of the $800 mortgage of October 26, 1891, given by Brown to Page for unpaid purchase money, was superior to Emerson’s right, and that Emerson was not entitled to subrogation without having paid or offered to pay the $800 mortgage. The court decreed a dismisal of 'Emerson’s cross complaint, and gave judgment for the plaintiff. As between Brown and Emerson, who were purchasers of a common estate, and bound by a joint obligation created thereon by them
A purchase-money mortgage is a mortgage upon real estate, given upon a conveyance thereof, to secure the balance of the purchase money remaining unpaid. It is the debt created by the purchase Such purchase-money mortgage usually has the priority over other claims or liens of any kind arising through the mortgage’
The payment by Emerson of $1,200 on the $2,000 mortgage of August 26, 1891, paid so much of the joint debt. The fact that Mrs. Page released the $2,000 mortgage of August 26, 1891, on payment of the $1,200 by Emersion, and the giving back of the purchase-money mortgage of $800 by Brown on his'undivided part of the land, with the tacit agreement that such mortgage should be a part of the obligation of August 26, 1891, and the express agreement that it should be a purchase-money mortgage, of all of which Emerson had notice at the time, was to Emerson’s benefit to the amount of $800 remaining unpaid, and should not be used as a subrogation weapon by Emerson to defeat Mrs. Page, nor the plaintiff, who succeeds to her rights in the mortgage, from recovering the purchase money actually due for the purchase price of the land sold, without first paying or offering to pay the same. Jones Mortg. § 229, and cases cited; 2 Warv. Vend. 736; 2 Jones, Liens, § 1116; Hurlbert v. Weaver, 24 Minn. 30; 19 Am. & Eng. Enc. Law, 583. As a general rule the right of subrogation cannot be enforced until the whole debt is paid or tendered to the creditor. Emerson ¡should have extinguished the debt before invoking the remedy sought.
The equity of Mrs. Page for the unpaid purchase-money mortgage of $800 is therefore superior to the equities of both Emerson and Brown, and, until she was paid in full, neither has any just equitable right against her. or her assignee, the plaintiff. Emerson, as surety for Brown, has an equity superior to that of Brown in the property, and, as against Brown, this equity could have been invoked after payment of the whole debt. Until payment, the plaintiff’s equity is superior to the defendant’s, Mrs. Page’s equity is superior to that of Emerson, and Emerson’s to that of Brown. We are of the opinion that the judgment of the court below should be affirmed. It is affirmed accordingly.
Dissenting Opinion
(dissenting):
It appears from the record in this case that defendant Emily S. Page, on December 17, 1890, borrowed $2,000 of the plaintiff, John Featherstone, and that on the same day she gave 'her note and mortgage on real estate owned by her to secure the same; that the note was made payable in two years from its date, and drew interest at 1 per cent per month; that the mortgage was duly recorded, and provided for the payment of an attorney’s fee of $100
In view of tbe foregoing facts, Emerson filed bis answer to tbe complaint of Featberstone, and filed his cross complaint against Featberstone and Brown, in which be alleged tbe foregoing facts, and asked to be subrogated
But it is insisted that Emerson cannot be subrogated to the rights of Featherstone by virtue of the first mortgage for $2,000 given by Mrs. Page to him, because he became the assignee of the mortgage to secure the $800 note by Brown to Mrs. Page. The subrogation is only asked to the extent that Emerson is compelled to pay Brown’s portion of the first note. He was not bound to pay the $800 note. He was not a party to it. Mrs. Page would not rely on her vendor’s lien when she sold the land to Emerson and Brown, and she took their note for the unpaid purchase price, and a mortgage to secure it. In accepting that mortgage she waived her vendor’s lien, if she had any. All her equities, if any, because of the consideration of the note being a portion of the purchase price, were merged in that mortgage. ■“When any other independent security is taken as a
“We do not apprehend that there could be any going-back to the time of McCoy’s purchase of the lots on January 20, 1879, and asserting a lien on the premises from that time as a vendor’s lien for the purchase money, but that the taking of the trust deed would be a waiver of the implied vendor’s lien, and that such deed would be the sole measure of the vendor’s right in the land for the security of payment of the purchase money.” In the ease of Pease v. Kelly the court said: “A mortgage is a more certain and definite security than a vendor’s lien. The lien exists if there is no higher security, but we think that the taking of a mortgage, which is an open and public lien, is a waiver of the vendor’s lien, and we think that both liens cannot exist at the same time, and such seems to be the well-established doctrine of the cases.” 3 Or. 417.
Mrs. Page having waived her equities against the land in question, except such as she obtained by virtue of her second mortgage, which does not profess to be for the purchase price, she 'had none to transfer, except such as the mortgage expressly gave her; and this mortgage, as it appears from the evidence above referred to, she expressly released on the 26th day of October, 1891, in
But if the vendor’s lien, or any equity against Emerson, with respect to the land, had existed outside of the mortgage, and had not been waived by it, such lien or equity did not pass to' Featherstone by virtue of the assignment of Brown’s $800 note. The great weight of authority is to the effect that it does not. Where such lien is recognized, it is to the vendor, and does not pass to his assignee. In the opinion of the court by Chief Justice Field, in the case of Baum v. Grigsly, 21 Cal. 173, the court said: “Indeed, with the exception of decisions of two or three states, the adjudged cases are uniformly against any assignment of the lien by a transfer of the note or personal security of the vendee. * * * The
But it is claimed that the subrogation of Emerson to the rights of Featherstone under the first mortgage, without paying the later mortgage given by Brown alone to Mrs. Page, and assigned to Featherstone, would be a subrogation pro tanto. But that would not be a pro tanto subrogation. The second $2,000 note and mortgage, for the remainder of which the $800 note and mortgage were given, were paid as to Emerson, and satisfied and given up to him, and Mrs. Page had no further claim on him, legal or equitable, after the $800 note given by Brown. To hold that this last mortgage, given by Brown alone to Mrs. Page, must also be paid, would be to tack onto the first mortgage by her to Featherstone the mort
I will refer to some of the authorities principally relied upon, cited in the opinion of the court. 2 Warv. Vend. 73S, and 2 Jones, Mortg. 1116, are cited. Those sections are confined to cases where there is an express agreement for a lien, or where the vendor has not parted with his legal title. They can have no application to this