Franklin v. Gorham, 2 Day 142

Franklin v. Gorham

2 Day 142 | Conn. | 1805

By the Court

unanimously, the judgment was reversed.

'The respective estates in Norwalk and Fairfield, though comprised in two separate deeds, form but one entire pledge for the security of the debt due to Mrs. Graham. ; on the payment of which, according to the terms of the condition in each deed, both would have been released ; on failure, both were still subject to an equity of redemption in the mortgagor.

An equity of redemption is indivisible ; and though liable tobe attached, and set off in satisfaction of a debt, as the property of the mortgagor, cannot be apportioned among creditors.

As subsequent mortgagees have a lien on the estate, and so a right to remove all former incumbrances, by redemption ; same principle is applicable to attaching creditors. *150The first acquires a right to redeem the whole estate out of tlic hands of the mortgagee, by paying the mortgage money, and thus to place himself in his situation ; with this difference only, that to the mortgage debt he has added his own ; he having acquired a defeasible estate, a lien on the property, removable by the next attaching creditor ; who has acquired the same right, diminished only in value. I his process may be pursued, until the estate is exhausted.

The foregoing principle being adopted, a rule is furnished, by which the respective rights among attaching creditors can be correctly, and distinctly, ascertained, and settled.

The respondent’s having purchased in the legal estate of Mrs. Graham did not vary their condition as creditors. The idea is unfounded, that this transaction added any legal or equitable force to their claims, or varied their relative situation with the other attaching creditors.

By this purchase, they took the estate of the mortgagee, subject to the same equity as before, redeemable either by the mortgagor, or his creditors. Assuming the principle, that the whole property comprised in both mortgage deeds forms but one mortgage, pledged for one and the same debt; that an equity of redemption is not divisible, and not to be apportioned among creditors; and that the first attaching creditor places a lien on the estate, and acquires a right to redeem the whole ; then, in this case, the petitioners were entitled to a conveyance of all the right, which the respondents had derived by their deed from Mrs. Graham, the mortgagee, on paying to the respondents all that remained due of the original mortgage, including principle and interest, togher with a small sum expended by the respondents for taxes.