Lord v. Sill

23 Conn. 319 | Conn. | 1854

Hinman, J.

The plaintiff’s bill takes no notice of the mortgage to the defendant, of November 11th, 1851; and as there is no replication to the defendant’s answer, in which that mortgage, with other facts, is set out, and title claimed under it, the proceedings are, in this respect, informal,—the parties, however, went to trial before' the committee, as if there had been a denial of all the facts set out by the plaintiff in his bill, and also a denial, by the plaintiff, of all the new matter, alleged by the defendant in his answer, and the committee have made a full report in regard to all the matters alleged by either party ; we shall treat the informality, therefore, as waived, and proceed to determine the respective rights of the parties, upon the facts found in the report of the committee.

The plaintiff has the whole equity of redemption, by virtue of the levy of his execution; and has, of course, a right to redeem all prior incumbrances. He, however, levied his execution on the equity of redemption, as subject, not only to the mortgages to the college, and to Mr. Warner, but also as subject to the mortgage to the defendant, on which he says in his levy, there was due, at the time he set it off, the sum of one thousand and sixty dollars. But the facts, found by the committee, show that the defendant’s mortgage was given under such circumstances, that creditors have a right to treat it as fraudulent and void, and the plaintiff now claims the right to redeem the other mortgages, and to hold the land, without paying the amount which appears to be due on this. If he was permitted to do this, under the title acquired by the levy of his execution, it is obvious that he would, in this way, acquire a title to real estate, valued at more than a thousand dollars, without making any compensation for it whatever. The plaintiff’s argument is, that, as that was a fraudulent mortgage, the defendant cannot set it up as against the plaintiff, a creditor of Hart, under whom they both claim. We think it a sufficient answer to this, to say, that the defendant does not set up his fraudulent mortgage, but the plaintiff set it up, and affirmed it, by levying his execution, expressly subject to it; and the defendant may well say to him, you have not taken, or attempted to take, the land represented by that mortgage, and therefore have no equitable claim to it, and you must be willing to do what is equitable, at the time when you are asking for equitable relief.

It was suggested, by the defendant’s counsel, that the levy was void, on the ground that the whole equity of redemption was not taken, or enough of it to satisfy the plaintiff’s execution. This is not so. The plaintiff found the land incumbered by the defendant’s fraudulent mortgage. It does not appear that he had any means of determining whether it was a valid or invalid incumbrance; and, if he had any suspicion on the subject, we think the defendant cannot complain, because the plaintiff chose to treat him as an honest man, in taking his mortgage of Mr. Hart. On the contrary, it would seem, that the plaintiff, if he was misled by finding such an incumbrance upon the property, and levied his execution subject to it, supposing it to be a valid incumbrance, has still the right, by a proper application to the court, to correct the levy of his execution, and to take the property as if there was no such incumbrance upon it. That point, however, does not arise in the case.

The plaintiff, since the levy of his execution, has paid and taken an assignment of the Warner mortgage, and the defendant has paid and taken an assignment of the mortgage to the college; and as the defendant also holds his one thousand dollar mortgage from Hart, and the plaintiff the final equity of redemption, by virtue of the levy of his execution, the question arises, in what order, respectively, the parties have a right to redeem, or are bound to redeem.

The mortgage to the college was prior in point of time, and, being valid, in every respect, against all persons, must be first paid.

The mortgage to Mr. Sill, the defendant, being next in point of time, and, though void against creditors, who choose to treat it as fraudulent, yet good, in respect to all other persons, and, as we have seen, good in respect to the plaintiff’s title, acquired by the levy of his execution, must be next paid, if the plaintiff only claims to redeem by virtue of the title acquired by such levy. But the plaintiff now holds the mortgage to Mr. Warner, which, though subsequent to the defendant’s mortgage, is, nevertheless, to be preferred to that mortgage, on the ground that, as a mortgagee, by a valid mortgage, he is also a bona fide creditor of Hart, and so can hold against the claim under the fraudulent mortgage: as against the defendant’s fraudulent mortgage, therefore, the plaintiff’s title, by virtue of the Warner mortgage, is second in point of time, and is to be redeemed next to the college mortgage, and, of course, as second mortgagee, the plaintiff has a right to redeem the college mortgage, without redeeming the mortgage to the defendant. But none of the mortgagees have a right to anything, but the money due them on the respective claims, and as Mr. Hart, the original mortgagor, would have the right to redeem any of the mortgages, so any grantee, or mortgagee of his, whether the grant or mortgage was founded on any consideration or not, has a right to redeem any of the prior mortgages. The effect, therefore, is to postpone the defendant’s mortgage to any bona fide incumbrance not expressly made subject to it, and, therefore, it is postponed to the Warner mortgage; and the decree of the court should be so modified as to permit the plaintiff, as the holder of the Warner mortgage, to redeem the college mortgage, unless the defendant, as the holder of his mortgage of the eleventh day of November, 1851, shall elect to redeem the Warner mortgage, held by the plaintiff, and if he so elects to pay, and redeem the Warner mortgage, he is to be permitted to do so, unless the plaintiff, as the owner of the ultimate equity of redemption, shall elect to redeem, by paying both the defendant’s individual mortgage, and also the mortgage which he holds, by assignment from the college.

In this opinion the other judges concurred, except Waite, J., who was absent when the case was argued.

Decree accordingly.