49 Conn. 563 | Conn. | 1882
In 1846 John K. Goodman and Abigail Goodman, with their three sisters, were tenants in common of six distinct parcels of land, each owning one fifth, deriving title under the will of their father, Richard Goodman. On the third of November, 1846, John K. mortgaged his interest in two pieces of the common property to Abigail. One of these pieces was subsequently discharged by the mortgagee, and she took possession of the interest purporting to be conveyed in the other, and remained in possession, taking the rents to herself, until 1863. Prior to the last date she became the owner of the equity of redemption, but prevented a merger by electing to keep the mortgage interest distinct, and on the 3d day of June, 1863, she
This suit is brought to foreclose that mortgage. Pending the suit Goodwin, the petitioner, transferred the note and mortgage to Ralph Cheney and has since died. Cheney, by decree of court on a supplemental bill, was made a party petitioner. Mrs. Kingsbury had a claim against Goodwin, who died insolvent. The Superior Court allowed that claim in reduction of the petitioner’s demand and decreed a foreclosure as to the balance.
Each party filed a motion in error, the petitioner assigning as error the allowance of the set-off, and the respondent assigning several errors, which we will first consider in their order.
1. The case shows that in the year 1832 Richard Goodman, the father, executed a deed of the premises to Abigail Goodman. That deed was never delivered, and was not recorded until 1849, four years after Richard’s death. By whose agency it was then recorded is not known. Abigail did not know of its existence and never claimed anything under it. The respondent offered to prove on the trial the declarations of Richard, made at the time he executed his will, concerning that deed, for the purpose of showing that he regarded it as a part of the testamentary disposition of his estate. This testimony was rejected by the court. There was no error in this. Such declarations could convey no title and could give no effect to the deed, and they could not be regarded as a part of the will unless embodied in it.
2. It is claimed that the mortgage was void, inasmuch as it attempted to convey by metes and bounds the interest of the mortgagor in a part only of the common property. The court decided otherwise, and this is assigned as error.
There is an underlying question suggested by this record which we do not propose to discuss, as we have no occasion to decide it, and that is, whether this deed, being by one tenant in common to a co-tenant, is within the rule.
The important question here is, whether the other tenants have so far assented to this deed that they are now precluded from objecting to its validity.
In Massachusetts such deeds are held good unless the co-tenants object. Brown v. Bailey, 1 Met., 254. We have not as yet adopted that doctrine. Our decisions indicate that the want of an objection is not sufficient. But this case does not depend upon mere silence; but that silence was continued for more than thirty years. The property has all passed out of the hands of the original tenants in common. Other persons have acquired interests in the property, some by deed and some by devise, and all, we may presume, knew of the existence of this mortgage and regarded it as valid.
If there was nothing else in the case it is at least doubtful whether, after so long a period of acquiescence, coupled with so many changes of title, there is any one now wdio is in a condition to raise this objection. However this may
3. The petition alleges that the assignment of the mortgage to Goodwin was made June 3d, 1863. Service by mailing a copy to Mrs. Kingsbury on the 1st of June, 1878, was held on demurrer to be good service as of that date. Goodwin v. Keney, 47 Conn., 486. It now appears that the assignment was dated May 7th, 1863, but was acknowledged and delivered June 3d, 1863. It is claimed that the case is witMn the statute, inasmuch as the suit was not brought within fifteen years after May 7th. The answer is that the record does not show that Levi Goodwin acquired any interest in the mortgage by agreement or otherwise prior to June 3d.
4. Abigail died in a little over one year after she assigned
But it is said that this mortgage contained a clause authorizing the mortgagee to collect the rents. That clause is as follows:—“ With authority to collect any and all rents that may become due to me from said premises, and apply the same towards the interest of my note.” We suppose that any mortgagee may collect the rents from the mortgaged premises with or without such a clause in the mortgage; but we do not understand that he is chargeable with the rents unless he actually receives them, especially where it appears that the mortgagor or those representing him have received them.
5. It is objected that the husband of Mrs. Kingsbury should have been made a party respondent. This objection comes too late. It is in the nature of a plea in abatement, and after a demurrer followed by a trial on the merits, we must regard it as waived.
The petitioner was the sole owner of the mortgage note. The maker long since died, and there was no way to collect the note except from the security, and for that purpose a proceeding in equity was indispensable. The respondent was the sole owner of the equity of redemption, and on a foreclosure she must either pay the note or lose her property.
We think the set-off was properly allowed. Courts of equity in the matter of set-off usually follow the law; but in many cases, where there is some intervening equity, they will allow a set-off where a court of law would not. Is there such an equity in this case ? It is a maxim of equity, and one of pretty general application, that he who seeks equity must himself do equity. This maxim is applicable more especially to the party who applies to the court for relief. The petitioner by thus applying has exposed himself to the full force of the maxim. By resisting the set-off he virtually says:—“ Aid me in collecting my debt, and help me to resist the payment of a debt which I honestly owe.” This the court cannot consistently do.
There would be less reason for applying the maxim if the petitioner was solvent, although even in that case there would be no injustice in it. But being insolvent, the case presented is one where the “ natural equity ” is very strong. Insolvency of itself will often raise an equity which will justify the interference of the court, even when the party desiring the set-off is himself the petitioner. It would seem to have greater force when the party opposing it is already in court seeking relief. Pond v. Smith, 4 Conn., 297; Bowen v. Bowen, 20 Conn., 127; Rowan v. Sharp’s Rifle Manufacturing Co., 29 Conn., 282; Same v. Same, 31 Conn., 1; Lindsey v. Jackson, 2 Paige, 581; Foot v. Ketchum, 15 Verm., 258; Blake v. Langdon, 19 Verm., 485; Chamberlin v. Stewart, 6 Dana, 33.
There is no error in the judgment complained of.
In this opinion the other judges concurred.