56 Vt. 529 | Vt. | 1884
The opinion of the court was delivered by
The defendants, Nelson and Bradish, allege in their answer that the mortgage sought to be foreclosed in these proceedings was legally discharged by the mortgagee at the time of their purchase of the premises ; that they paid for the same at the time of the conveyance ; that the purchase was made in good faith and the property paid for before any notice to them of the rights of the petitioners. When John Campbell transferred the notes in question to the petitioner Ladd, lie made no transfer of the mortgage deed, and afterwards when the defendants, Nelson and Bradish, purchased the premises, or soon after, discharged the mortgage. The answers are inartificiallv drawn, are not as
Upon an examination of the testimony we are satisfied that when Nelson and Bradish purchased the premises, they did so relying in good faith upon the promise that the mortgage to John Campbell should be discharged by him, and without notice of the rights of the petitioners, and that they paid for the premises before they had notice of such rights, or had learned any facts sufficient to put them upon inquiry. We find from the evidence that the premises were paid for in money. Bradish testified that they paid for them at the time, and speaks of the purchase money ; he testifies that they paid the 'consideration at the' time the deed of each undivided half was delivered ; that the sums of money so paid were more than the market value of the property. Sherman testified that of the money that he paid, that there was one check for three thousand dollars, and used the words, “ before I paid this money P There was no cross-examination of the witnesses upon this question of whether the payments were made in money or otherwise, and no evidence adduced by the petitioners in respect thereto. The question arises as to the effect to be given the discharge of the mortgage by John Campbell. In Torrey v. Deavitt, 53 Vt. 331, it was held that where the assignee of a mortgage debt failed to take, and have placed on record, an assignment of the mortgage deed he placed power in the hands of the original mortgagee to commit a fraud upon innocent parties, and that his rights must be postponed to those subsequently acquired by such innocent parties in good faith and without notice of the assignee’s antecedent .rights in the premises. The facts in this case bring it clearly within that rule. That the mortgage was not discharged until some days after the premises were deeded should not effect the case, as the proof is full, that the trade was made upon the distinct understanding that it should be discharged; and it was so done in pursuance of that understanding. When the arrangement was made that the mortgagee of record should discharge the mortgage, and the defendants acted in good faith, with no notice
The decree of the Court of Chancery is reversed and cause remanded with a mandate that the bill.be dismissed.