Holcomb v. Holcomb

2 Barb. 20 | N.Y. Sup. Ct. | 1847

Harris, J.

I think the position taken by the counsel foi the defendant Perry, that the bill is not properly framed for the purpose of litigating his title to the premises in question, is well taken. The bill is an ordinary bill to foreclose a mortgage. It contains the usual allegation that Perry is made a defendant as a subsequent purchaser or incumbrancer, and yet it is sought to divest him, by the decree in this cause, of a title which he claims to hold adversely to the parties to the mortgage, and which he acquired under a lien prior to the conveyance by the plaintiff to the mortgagee. It is a general rule that, besides the parties to the mortgage, those only are proper parties to a suit for its foreclosure who have, subsequent to the mortgage, acquired rights or interests under the mortgagor or mortgagee. The plaintiff may also make prior incumbrancers parties to the bill, for the purpose of having the amount of such incumbrances liquidated and paid out of the proceeds of the sale ; or he may, at his option, have the premises sold subject to such prior incumbrances. The object of the bill is to vest in the purchaser under the sale made by virtue of the decree of foreclosure, the same title which the mortgagor had at the thne of the execution of the mortgage. The mortgagee, in filing a bill of foreclosure, has no right to make one, who claims adversely to the title of the mortgagor, and prior to the mortgage, a defendant in the suit for the purpose of contesting the validity of such adverse claim of title. (Eagle Fire Co. v. Lent, 6 Paige, 637.) In this case, if, instead of making Perry a defendant, under the general allegation that he claimed an interest in the premises, ■“ as subsequent purchaser, incumbrancer or otherwise,” the facts upon which the plaintiff relies, to defeat the title of the defendant Perry, had been alleged in the bill, he might, I think, have demurred to the bill upon the ground that the plaintiff had no right to bring him into court upon this bill of foreclosure, to try the validity of his title to the mortgaged premises.

But conceding that Perry is properly made a defendant, and that the validity of his claim may properly be determined in this suit, I think the plaintiff has failed to show herself entitled to any relief, as against him.

I agree with the plaintiff’s counsel, that the deeds executed on the 19th of September, 1840, are to have the same effect as if, instead of conveying the whole farm to Williams, the plaintiff and A. L. Holcomb had only conveyed to him the 111 acres which it was intended he should have, and at the same time A. L. Holcomb had conveyed to the plaintiff the 30 acres which were in fact conveyed to her by Williams. In that case, if the plaintiff had not joined in the covenants contained in the deed to Williams, both parcels of the farm would have been equally liable for the payment of the judgment against A. L. Holcomb, the grantor of each party, and the conveyances being simultaneous, neither could claim protection as against the other, as a prior alienee. Then Williams, or Perry who for this purpose stands in his place, would have been liable, if the plaintiff’s 30 acres had been sold to pay the judgment, to have contributed his equitable proportion of the amount of the judgment.

But the plaintiff, by the covenant that the land conveyed to. Williams was free and clear of all charges and incumbrances, has deprived herself of the right to contribution which she otherwise would have had. The effect of that covenant is not only to release any claim which she might have had against Williams, or those holding under him, on account of the judgment, but also to render her liable to indemnify Williams and his grantees against that judgment. If this be so, the 30 acres conveyed to the plaintiff were in equity first chargeable with the payment of the Tan Rensselaer judgment. The court having the control of the execution issued upon that judgment, would, if applied to upon the facts which appear in this suit, have given the same directions which, it is alleged, were given by Perry in relation to the collection of that execution. The fact that the plaintiff, in case any part of the judgment had been collected by a sale of Williams’ portion of the farm, would have been liable upon her covenant for the amount so collected, would have been a perfect answer to any claim by her that Williams’ land was equally liable with hers for the payment of the judgment.

But it is insisted that the plaintiff, in executing the deed to Williams, did not intend to assume the payment of the Tan Rensselaer judgment. It is not pretended that any fraud or imposition was practised upon her in the transaction. At any rate, none is shown. It may well be that the plaintiff was not aware of the full effect of the deed she executed ; but no rule, is better settled than that a party to an instrument, in the absence of fraud or deception, is always to be presumed to have intended what the instrument itself imports. On the whole, I can see nothing in the facts of this case which, under any circumstances, would entitle the plaintiff to relief as against the defendant Perry. As against him, therefore, the bill must be dismissed with costs. The plaintiff is of course entitled to the usual decree of foreclosure against the other defendant,