30 N.J. Eq. 40 | New York Court of Chancery | 1878
By the final decree in this cause, it is directed that a certain part of the mortgaged premises, which was conveyed by Joseph Coult and his wife to Isaac A. Walker, on the 1st of July, 1868, be sold to raise a part of the money due on the complainant’s mortgage, which was, when the conveyance to Walker was made by Coult, an encumbrance on that and
It is the established rule of this court that, if a moi’tgagor sell the land covered by the mortgage in different parcels and at different times, the parcels shall be sold to raise the money to discharge the mortgage debt in the inverse order of their alienation. Shannon v. Marselis, Sax. 413. And this rule applies though the sales in parcels were made, not by the mortgagor, but by a person claiming under him. Wikoff v. Davis, 3 Gr. Ch. 224. It is applicable, also, to a case such as the present. When the petitioners bought the part of the property which was conveyed to them, it was subject to the mortgage, but the rest of the property remained in the hands of Walker, and, as between him and them, that part so retained by him was liable, in equity, to be first sold to pay the mortgage. It is to be regarded as having been then equitably charged with the payment of the mortgage debt, and the complainant, when he purchased it from Walker, took the place of the latter, and took the land so charged in equity. That land, now owned by Mary