57 N.J. Eq. 522 | New York Court of Chancery | 1898
In this case the complainant forecloses a mortgage originally given upon about ninety-four acres of land, which was laid out in building lots (one thousand and forty-one in number), with parks, streets and depot lot. The defendant Mrs. Jennie Eeynolds is a subsequent mortgagee'of the “depot lot.” All of the lots and parks included in complainant’s mortgage have been released by complainant or her assignors, except the “ depot lot” and seventeen of the building lots. Nine hundred and eighty-one of the lots were released subsequent to the execution and recording of defendant’s mortgage, and the remaining forty-three lots were released subsequent to the conveyance of the “ depot lot” to Mrs. Emeline Condict, under whom the defendant mortgagee claims.
“ Mr. Condict said, ‘ I don’t want to deceive you at all in this matter ; there are $750 to be paid on this; ’ he didn’t say what the nature of it was, but he says, ‘ that is all right, it is the same as though it didn’t exist; arrangements have been made to settle all that, and it is the same as if it did not exist.’ He said arrangements had all been made.”
The $750 does not appear to have been paid, and the amount due on the complainant’s mortgage is over $5,000. Mrs. Reynolds says she had no knowledge of the Jackson mortgage at the time of taking her mortgage. It is now claimed by her counsel that, as to releases of the property covered by complainant’s mortgage, she is chargeable only with the constructive notice of the provisions of the release in the mortgage itself, and is entitled, as claiming under Mrs. Condict, to have the full value of all the property remaining after the deed to Mrs. Con-dict was given, and which was afterwards released by complainant, applied to the payment of the mortgage. She claims that the proof establishes that Mrs. Jackson, at the time of these subsequent releases, had actual notice of her mortgage. This actual notice, however, is disputed, and is the principal question of fact in the cause.
Upon consideration of the pleadings and proofs, I reach the following conclusions:
First. The complainant had notice, through her agent, William H. Jackson, of the existence of complainant’s mortgage, at the time of the execution of the releases of her mortgage in 1894.
Second. The deed to Mis. Condict, the predecessor in title of defendant Mrs. Reynolds, not being shown to be a purchase upon valuable consideration, or a deed of warranty from Laura r/Jackson, the doctrine of marshaling the properties in the inverse
In such cases, courts of equity, for the purpose of carrying out the evident intention of both parties, that the vendee shall receive, so far as possible, the full benefit of the purchase free of encumbrance . as intended to be made, have required the property remaining to the vendor to be first exhausted. I have been referred to no decision in this state, expressly upon the point that a voluntary deed upon nominal consideration without cov•enants of warranty, will not relieve the grantee from his liability to a ratable contribution, but this is the doctrine, as settled in other courts, where the general principle of marshaling is the same as ours. Notes to Aldrich v. Cooper, 2 Lead. Cas. Eq. (4th Am. ed.) 296, 304; 15 Am. & Eng. Encycl. L. 831, note 2.
Where the deed is upon a nominal consideration and there is ■no agreement either express, as by warranty in the deed or other
Third. The provisions of the release made on December 29th, 1892, between Planten, the holder of the mortgage, and Laura Jackson, the owner of the premises, must govern the liability of the respective portions of the premises, including the lot previously conveyed to Mrs. Condict. Silas Condict, for whose benefit and in whose interest the conveyance to his wife of the “ depot lot ” was made, participated in this agreement, became a grantee of the “ depot lot ” after the agreement was made, and under the circumstances shown in this case, was bound by this agreement as to releases, fixing the proportion of the debt to be paid by the depot lot.
The only equity as to contribution which any grantee, without notice, under Mrs. Condict could claim, would be the re-adjustment- of the proportionate value, if $750 exceeded the ratable value of the lot, but there is no claim or evidence that the proportion was unfair. Moreover, Condict’s mortgagee, Mrs. .Reynolds, had notice at the time of taking her mortgage, that