5 Vt. 250 | Vt. | 1833
The opinion of the Court was delivered by
The defendant’s counsel requested the Court to decide; 1st. That under the above circumstances, it was incumbent on the plaintiff to produce the obligations secured by the mortgage, or they would be presumed paid, or cancelled, and taken up ; or at least, it was necessary to explain why they were not produced.
When the equity of redemption is foreclosed by a decree of a Court of Chancery, oris released by the mortgagor, or by his assignee, to the mortgagee, or to his assignee, the title, which was conditional, becomes absolute; and it cannot be necssary, for the mortgagee, or his assignee, to preserve the note, which is described in the condition of the mortgage, to keep good h;s title; nor produce the note to maintain .ejectment brought on the mortgage. The presumption is, that if the mortgagor released his equity of redemption to satisfy the note, the note was given up to him by the mortgagee, at the time, to be cancelled. But if the mortgagor has never released his equity of redemption, this presumption cannot arise ; and if the mortgagee is unable to produce the note, the presumption is, that the morgagor has paid it, and taken it up; not by a release of the equity of redemption, but in some other way. It was on this presumption, that a majority of this Court decided, that the mortgagee could not maintain ejectment against the mortgagor, without producing the note described in the condition of the mortgage. See Edgell vs. Stanford, 3
Second Request: To decide that whatever name the * parties might have given to the conveyance to Marshall, that circumstance, and the contract connected with it was, prima facie an extinguishment of the mortgages.
It has been often decided, that where the mortgagor has by deed conveyed his equity of redemption to the mortgagee in satisfaction of the note described in the condition of the mortgage, the mortgage becomes an absolute title, and is not merged in the conveyance of the equity of redemption, if such merger would operate to the injury of tho mortgagee. See 1 Chip. 448; 2 Con. Rep. 161; 6 Con. Rep. 3S8-9; 3 J. C. R. 53. The County Court did not err in disregarding this request.
Third. That the plaintiff could not join different persons in the same writ between whom there had been no privity, concert, or connexion in the possession of the different apartments of said building,
The plaintiff having bought the building in question, and having found the defendants in possession, was not obliged to enquire how they came there ; nor what division of his property, they had made among themselves ; but he might bring his.action against them all, jointly; and if any one does not choose to be responsible for the others, ns to the rents and profits, he may plead severally, not guilty, as to that part of the building in his possession, and disclaim as to every other part. Or- if he was in possession of no part of the building, when the writ was served, he may disclaim as to the whole. This proceeding i n ejectment is allowed by Statute,Chap. 7, p. 89, which says, “ The writ shall not be abated because all the tenants are not sued ; but those on whom service is made, shall an - swer for such part of the premises only as he, she or they shall distinguish, and set forth in his, her or their plea, aqd disclaim the remainder. And if any shall disclaim the whole unless the plaintiff shall prove such disclaimerb possession,of alitor part'of the premises demanded, such disclaimer shall recover costs against the plaintiff.” The word, “ disclaimer,” in the Statute, is improperly used for defendant. vt'
The notion of a disclaimer in our action of ejeótment
“ But as a disclaimer was never at common law, pleaded in bar of the action ; so neither was it, strictly speaking, a plea in abatement. It did not give the demandant a better writ. It contained no traversable fact.) It was, in effect, an offer by the tenant to yield to the claim of the deman-dant, and to admit his title to the land.” See Stearns on Real Actions, 223.
Whether a disclaimer under our Statute does in its effects differ from a'common law disclaimer, we are not called upon to decide. But we are all satisfied, that in this action there was no misjoinder of defendants.
The judgement of the County Court is affirmed.
