24 Me. 427 | Me. | 1844
The opinion of the Court was drawn up by
On February 23, 1835, the State conveyed to Randal Whidden several lots of land in the town of Amity, amounting in the whole to about 17,500 acres, in fee simple, on condition that the grantee should pay, when payable, his four notes of hand for the sum of $2577,25, each, (which came to maturity in one, two, three and four years from their dates) and should cause twenty of the lots to be settled within five years from the time of the conveyance. On the 5th of August, 1835', Whidden conveyed by several deeds in fee with covenants of warranty, five-eighths of the land to Lucius Doolittle, and three-eighths to Christopher V. Spencer, subject to the condition of causing twenty of the lots to be settled as mentioned in the deed from the State to Whidden, taking their joint. bond, that they- should pay his notes to the State in the proportion of five-eighths by Doolittle and three-eighths by Spencer, according to their tenor, secured by a mortgage from each, of the part sold to them respectively. On October 15, 1835, Doolittle conveyed by deeds with warranty, one-eighth of the land to the complainant, and one-eighth to one Turner, subject to the condition of causing twenty lots to be settled, receiving at. the time the full consideration therefor; and on the 10th of November, 1835, conveyed the remaining three-eighths belonging to him, to Daniel Wood, Bray ton Gardner, and Whipple Phillips, one-eighth to each, subject to the condition last before named, and in consideration, took their joint bond, to take up five-eighths of Whidden’s notes to the State. On November 21, 1835, Spencer conveyed to the defendants by deed with covenants of warranty, subject to the condition of settling twenty lots, one-eighth of thé land, and received the full consideration. Subsequent to this, Spencer sold one-sixteenth to Nathaniel Perkins, and purchased of Phillips the part sold to him by Doolittle, agreeing to assume Phillips’
The defendants in their answer, admit that the several notes, bonds, conveyances, mortgages and assignments were made and given as before mentioned, but deny, “ that they became parties to a contract as recited in the bill, or received funds sufficient to extinguish the mortgage held by said Whidden, or applied the same in extinguishing the same, or were bound by any contract, or that it was their duty so to do.” That when only one of Whidden’s notes to the State had been paid, and two others were overdue and unpaid and the interest upon all of them was unpaid, Spencer' declared himself unable to meet his engagements, and requested the assistance of the defendants in obtaining the means for relieving the land from the incumbrance, and prevent a forfeiture thereof, and by an arrangement for that purpose, Spencer agreed to furnish about two thousand dollars in money, on receipt of which the defendants were to indorse, and Spencer was to negotiate these notes of Spencer for the sum of four thousand dollars, and apply the proceeds thereof, and the two thousand dollars to be furnished by Spencer, to the discharge of Whidden’s notes. But Spencer neglected to furnish the sum of $2000, and the defendants did not indorse and Spencer did not negotiate the notes, but the defendants now hold them ready to deliver to Spencer on his giving up the receipt taken by him therefor from them. And the defendants say, in their answer, that of
It is insisted for the complainant, that the mortgage was discharged from the funds, which Spencer, Wood and Gardner furnished for that purpose, and that this appears from the contract of March IT, 1838. By that it is obvious, that with a view to obtain means to prevent a forfeiture to the State, and to cause a discharge of the mortgage to Whidden, Spencer contracted with the defendants to convey two-eighths of the land then in his hands, as security for their indorsement or guaranty of his paper for a sum not exceeding f$4000, and thereby enabling him to raise money. Spencer, Wood and Gardner contracted, that they would each severally furnish with the proceeds of the notes, to be signed by Spencer, and indorsed or guarantied by the defendants, and otherwise their respective proportions of a sum sufficient to pay and take up all demands in favor of the State against the land, whether due or not, and the probable expense of making the payment; and the defendants, or either of them, wore empowered to redeem the forfeiture, if the lands had been forfeited to the State, Whidden or others, or return with the funds, in their discretion ; and they also engaged to make good to the defendants any amount, which they might expend by reason of the neg
The answer states, that the proportion to be paid by him was about $2000, and the account annexed to the deposition of Burr, put in by the complainant, shows that it was not far below that amount. The notes were not indorsed by the defendants, but remain in their hands, which they offer in their answer to surrender on obtaining their receipt therefor.
The whole fund necessary to extinguish the mortgage was intended to be provided; this was to be done by Spencer, Wood and Gardner, by the assistance of the defendants, which they supposed they had obtained. The defendants were not bound by the written agreement to provide the fund, any further than their indorsement of Spencer’s paper might produce it; but the other parties to the contract were obliged to furnish all which might be necessary beyond the proceeds of those notes, which could not exceed $4000, and would probably fall short; by making up this balance, they were doing only what their previous engagements and covenants required of them; and the acts to be performed by them were entire; a failure in any respect would be a violation on their part of the contract; from the nature of the subject matter, the obligations of the two parties were not independent; the defendants took upon themselves the agency to apply the funds; they could not enter upon that agency unless they wére supplied;. there was no agreement, that they would act in the application of apart only of the funds; the partial payment would be, productive of no advantage; the two-eighths of the land conveyed at the time by Spencer was no part of the fund, but security to the, defendants for a liability, which they were to assume, and when the liability should be discharged, they were
It is again contended that it is clearly proved by Spencer’s deposition, that the defendants expressly contracted with him to make up the balance of his part of the money, after the agreement of March 17, 1838; that this deposition is sustained by the conduct of the defendants, before January J5, 1839, by the depositions of Carpenter and Gardner, and by the account annexed to Burr’s deposition.
The bill charges no other contract, between Spencer and the defendants, than the one under hand and seal, dated March 17, 1838. The answer denies any agreement, requiring of the defendants to advance for Spencer or others this part of the fund. No proof of such an agreement is found in the depositions of Carpenter and Gardner; these refer to the written contract and the negotiation which resulted therein. It is not perceived that the conduct of the defendants will admit of such a deduction as is contended for, so far as it is disclosed in the bill, answer and proof. The account annexed to Burr’s deposition, is evidently made out, after the assignment of the mortgage, and refers to the amount belonging to Wood, Gardner and Spencer, each to pay, by virtue of their previous contracts with Doolittle and Whidden, and not of those with the defendants, excepting for the expenses, interest and taxes, paid to Whidden, and the defendants’ own expenses. The deposition of Spencer, standing alone, would perhaps indi
It is insisted for the complainant, that a contract between the parties to this bill, that the defendants should extinguish the mortgage, is distinctly charged, evaded and not denied in the answer, and proved by the depositions of Carpenter and Gardner, and rendered almost certain by the written agreement of the 17th March, 1838. Such a contract is charged in the bill; but the answer denies, “ that the defendants became parties to a contract as recited in the bill, or received funds to extinguish the mortgage held by said Whidden, or applied the same in extinguishing the same, or were bound by any contract, or that it was their duty so to do.” Gardner was interested to free the land from exposure to forfeiture, to prevent a foreclosure of the mortgage, and was one, who was bound to provide the means, and was a party to the written contract of the 17th March, 1838. Carpenter was the counsel of all who were interested, was consulted by them, and fully advised them touching the matter. Nothing is found in their depositions, which we are able to construe into proof of any contract between the complainant and the defendants. Besides, the written contract was sufficient, if all the stipulations had been carried into effect, to have extinguished the mortgage, and have prevented a forfeiture of the land. This contract was brought into existence, partly by the activity of the complainant ; he executed it in behalf of one of the parties and knew its terms; he was interested to have its object accomplished, as it would give a perfect title to him of his part of the land; but he paid no consideration, that it should be made, and took upon himself no liability under it, or otherwise. There was no good reason for his desire, that the defendants .should bind themselves by a promise to him, to extinguish the
The complainant again contends, that as between the parties to this bill, the defendants were bound after the contract of the 17th March, 1838, either to have extinguished the mortgage, or to have given him notice that it was not done, in order that he might have been in the situation in which he was, before that contract. There was no contract between these parties, and the defendants could not be bound to give the complainant notice of the failure of one to which he was a stranger. The assignment of the mortgage has not operated to his prejudice; he is now admitted by the answer, and otherwise proved to be a tenant in common with the defendants and others, and holds the same rights in reference to the mortgage in their hands, which he did when in the hands of the mortgagee before the assignment.
At the time of the assignment of the mortgage to the defendants, they were under no contract to extinguish it; they were the owners of three-sixteenths only of the land, which they held under warranty deeds from Spencer; and the mortgage cannot be considered as having been extinguished by the payments then made.
It. is finally contended, that as the defendants received quitclaim deeds of two-eighths of the land from Daniel Wood, and one-sixteenth from Nathaniel Perkins, and also received from Spencer a conveyance of one-sixteenth, besides the two-eighths which were for the security of indorsing the notes of $4000,
It may be true, that when the mortgagor sells a part of the mortgaged premises for a valuable consideration, the mortgage should be satisfied from that which remains in the mortgagor, if sufficient; and if the mortgagor sells the last portion subsequently to the former, the last grantee having notice, actual or constructive, of the mortgage, and the first conveyance of the mortgagor, the equities of the two grantees of the mortgagor are not equal; and they are not bound to contribute rateably to discharge the incumbrance, but the part last sold must be exhausted before resort can be made to the other. Gill v. Lyon, 1 Johns. Ch. R. 447; Clowes v. Dickinson & al. 4 Johns. Ch. R. 235. But the doctrine involved cannot apply to this case as it now stands. The bill does not allege, that the part of the land held by the defendants, which it is insisted should be charged with the whole incumbrance, was of sufficient value for that purpose at the time of the assignment. It does allege, that prior to the making of the contract of the 17th March, 1838, it was the duty of the parties thereto, to pay the notes of Whidden to the State, and remove the incumbrance as a part of the consideration to be paid by them for their interest in the lands, the parties being the sole owners of the remaining six undivided eighth parts of the same; and that the lands were considered of greater value than the amount of said incumbrance. The defendants do not admit or deny this allegation, in their answer; the proof does not show the value of the lands held by the defendants, at the time of the assignment of the mortgage, nor does it disclose the value of them, before the execution of the contract referred to; the relief sought by the bill is therein put upon other and distinct grounds. We have seen, that when the defendants paid the mortgage debt, the charge was not intended to be extinguished, but to be kept on foot. The subsequent releases
The complainant will be entitled to a release from .the defendants of the part of the land belonging to him, on payment of such a sum as may be justly due; but that remedy he has not sought in his bill; he has simply demanded of the defendants a release, which has been refused; he has neither paid, nor tendered the money due for that purpose; neither has he offered evidence on any ground, that nothing was due; he did not, before the commencement of the suit, request the defendants to render a true account of the sum due, nor offered to pay such sum in his bill, as he was required to do in order to entitle himself to a decree. Rev. Stat. c. 125, § 16 and 17.
Bill dismissed with, costs for the defendants.