Gill v. Lyon

1 Johns. Ch. 447 | New York Court of Chancery | 1815

The Chancellor.

The mortgage ought, justly, to be borne by the lands purchased by Gill, if sufficient to satisfy it; and Lyons and the other purchasers from the mortgagor, prior to the judgments, are not bound in equity to bear a ratable proportion of the mortgage debt, uhless the residue of the mortgaged premises shall not be sufficient to extinguish it. The doctrine of contribution does not apply as between Lyons and the other purchasers from Wells, on the one part, and Gill on the other, because their equity is not equal. Lyons, and the others, purchased for the full value, and under a covenant from Wells, that they should hold . their lands free of encumbrances ; and Gill afterwards purchased only the equity of redemption remaining in Wells, and he made it with knowledge of the conveyances to Lyons and others, andhehas, therefore, no justclaim to contribution. He purchased the remaining right of Wells, and no more ; and Wells, if he had extinguished the mortgage, would have had no claim for contribution against his own vendee. The case is too plain to need much illustration, and I shall, accordingly, decree, that the portion of the mortgaged premises purchased by Lyons, and others, prior to the purchase of the residue by Gill, be not sold until the residue shall be found insufficient for the payment of the mortgage debt; and that their lands shall only be chargeable with the balance due to Willson, after the residue of the mortgaged premises shall have been exhausted. And, in order that Willson may deal justly with his mortgage, as between the several purchasers, I shall further decree, that he be restrained from selling the portions of the mortgaged premises purchased by Lyons, and others, prior to the purchase by Gill, until he shall have disposed of the residue of the mortgaged premises, and until those purchasers shall have refused to redeem their portions of the premises, after thirty days’ notice, to their solicitor, of the insufficiency of the residue of the mortgaged premises to satisfy the mortgage and costs thereon; and that Gill pay to the plaintiffs, in the suit in which he is a defendant, their costs, to be taxed.

Decree accordingly, ^(a)

(a) Vide ante, p. 425.