Ottaquechee Savings Bank v. Benjamin L.

58 Vt. 166 | Vt. | 1885

The opinion of the court was delivered by

Taft, J.

Petition to foreclose a mortgage as to Benjamin ' L. and Truman R. Holt, and to redeem another mortgage as to Nathan L„ Holt.

The petitioner contends that the condition of the mortgage given by Benjamin L. Holt to secure the support of Nathan Holt was personal, and could only have been performed by Benjamin personally. This mortgage was assigned by Nathan Holt to the defendant, Nathan L., and the latter agreed with Benjamin to perform the conditions thereof, and has fully done so.. It is too late for Benjamin to say that such agreement and assignment were void. Under the circumstances, as shown by the master’s report, our courts hold that the performance of the condition of a mortgage given for the support of a person may be performed by an assignee, unless such support is required by the terms of the instrument, to be furnished by one personally. Joslyn v. Parlin, 54 Vt. 670.

In this case it would be unjust,, after Nathan L. has performed the condition of the mortgage which had been assigned to him by the mortgagee with the consent of Benjamin, to say that Nathan L. shall not have the benefit- of it. The transfer was valid.

The mortgage sought to be redeemed was properly recorded. The petitioner had constructive notice of it, and took its own mortgage in subordination to it. The president of the petitioning bank had actual notice of it; and notice to the president was notice to the bank. Porter v. Bank, 19 Vt. 410. See Hart v. Bank, 33 Vt. 252.

The mortgage was conditioned for the support of Nathan and Louisa Holt; and after Nathan L. agreed with Benjamin that he, Nathan L., would support them, and Benjamin had agreed to pay him for so doing, Nathan L. and Benjamin agreed upon the sum which should be so paid, and the latter executed his two notes for the same. Nathan and Louisa are both dead; and the master reports the amount that it cost Nathan L. to support them and comply with the other conditions of the deed; and the petitioner insists that, if compelled to redeem, it should pay this sum instead of the amount agreed upon and expressed in the two notes. I-am inclined to think this view is correct; but my brethren think otherwise, and hold that, as the bank was affected with notice to its president, and he had notice of the controversy between Benjamin and Nathan L., that they were then attempting to settle upon the amount which Benjamin should pay Nathan L., attempting to make the amount a fixed one, and agreeing upon a mode of settlement by arbitration, that it should be bound by the settlement, if fairly and honestly made, although made after the bank had taken its mortgage.

There is no claim of fraud in the settlement; it is clear that it was a reasonable one; and the court hold that the amount to be paid by the petitioner is the sum due upon the two notes as stated in the report.

There is nothing in this case to vary the general rule as to costs, which is, that upon a bill to redeem, the defendant is entitled to costs.

The decree is affirmed and cause remanded. The defendant, Nathan L., to recover costs.