51 Vt. 552 | Vt. | 1879
The opinion of the court was delivered by
This is a petition to foreclose a mortgage executed by Jacob W. Ward and Eliza R. Ward, his wife, to the orator, July 27,1866, on certain land, mill privilege, and machinery in Plymouth, Vt., conditioned for the payment of J. W. Ward’s note of $600. At the time of the execution of- this mortgage, Eliza R. Ward had no title or interest in or to the premises. There was then resting upon the premises, not covering the machinery, a prior mortgage to Hannah Headle, the mother of Eliza R. Ward. Jacob W. Ward and Eliza R. Ward both joined in the covenants in the mortgage to the orator, which contains the usual covenants against incumbrances, and of- warranty of title, excepting therefrom the mortgage to Hannah Headle. After the decease of Hannah Headle, which occurred some time previous to December, 1870, her administrator foreclosed the mortgage held by her, making Ward and wife, the orator, and others, defendants. Ward had in the meantime procured an insurance on the buildings and machinery on said premises for about $1,000, payable in case of loss to the mortgagee, Hannah Headle. At the time of the decree for the foreclosure of the Headle mortgage, December Term,
In Smalley v. Hickok, 12 Vt. 158, Collamer, J., states the doctrine in the following language : “ It is a general rule that the receiving, in whole or in part, the mortgage debt included in a decree of foreclosure, after it has become absolute, will let in the mortgagor to redeem. But the whole of that doctrine amounts to but this, taking money for which a forfeiture has accrued, is, in chancery, a waiver of such forfeiture, and of all forfeitures then existing. This is all the authorities show. Hickok, by taking the second installment in the decree when the first was overdue, waived the forfeiture then existing ; but that did not vacate the decree as to the subsequent installments, which the mortgagor remained bound to pay, according to the decree.” The application of this principle to the facts of this case, shows that the decree in favor of the administrator of Hannah Headle is still absolute against this orator, and bars his right to maintain the present suit. This holding renders the consideration and decision of the second question made by the orator unnecessary.
The pro-forma decree of the Court of Chancery dismissing the bill with costs .is affirmed, and the cause remanded.