57 Vt. 647 | Vt. | 1885
One question is as to how the note of $328, and the agreement to increase the rate of interest of the prior mortgage debt, shall be treated in ascertaining the amount due on the oratrix’s mortgages as against the two defendants respectively.
On the 8th of March, 1872, Darling mortgaged certain described land, machinery, etc., situated in Weathersfield, Vermont, to the defendant, Augusta W. Bishop, to secure a note of $3,000.- This mortgage was foreclosed, decree obtained, and Bishop’s interest passed to Williams & Go. for a valuable consideration. When this mortgage was given the oratrix held two mortgages on the same premises; one executed by Darling to the oratrix dated February 11, 1871, to secure a note of $550; the other executed by him to other parties, dated September 14, 1860, and assigned by them to the oratrix, being given to secure a debt on which there was due at date of assignment the sum of $847.09. All these mortgages were executed in the State of Rhode Island, where the parties thereto resided. By the law of that State the rate of interest agreed upon between the parties is a legal rate; but in absence of other agreement the legal rate is six per centner annum. The oratrix’s said mortgage debts bore six per cent interest, there being no other agreement as to rate of interest. The condition of the mortgage dated February 11, 1871, was as follows: “ That whereas I, the said Levi B. Darling, have executed my negotiable promissory note for the sum of $550, bearing even date herewith, and made payable to the said Mary H. Pettis or order, in one year from date, with interest till paid, atid whereas I may become further indebted to said Mary H. Pettis or her assigns within one year from the date hereof by other promissory notes for other money that may be during said year loaned by said Mary H. Pettis or her assigns to said Levi B. Darling. Interest on the first of the above named notes to be paid semi-annually.” “Now,”&c.
This suit is brought against the mortgagor Darling and Mrs. Bishop to foreclose said two mortgages.
We think this position is well taken, as between Mrs. Bishop and the oratrix. When the former took her mortgage she had as good a right to rely upon the rate of
The statute of Rhode Island does not aid the oratrix although Mrs. Bishop was chargeable with notice of it, because it Avas only by force of the subsequent contract that the rate of interest was increased. The statute was notice only of the right to raise the rate as between the prior parties. They had fixed the burden upon the property and Mrs. Bishop had the right to take a mortgage on it in reliance upon that burden as the extent of the encumbrance. It has even been held that in case of a prior mortgage to
There is no occasion to refer to Williams & Co., as they are not parties to the suit. Just how they stand related to the property does not appear further than the simple statement in the report that Mrs. Bishop’s interest has passed to them.
The note of $80 dated September 7, 1876, should not be included in the sum due. The facts in brief ar*e as follows : Darling gave to the oratrix to be applied on his debt six acceptances of $150 each, which the oratrix took as payment on the indebtedness. She afterwards' put some of them into Darling’s hands for collection and he collected the same, and when she called for the money he paid it to her except $80 for which he gave his note. This was not simply a change of mortgage securities. It was an independent transaction entered into after the acceptances had been received as payment on the mortgage debt. It was a loan of $80 on the personal credit of Darling.
We think these facts show a well understood purpose and assent on her part to have this money accounted for by application on the oratrix’s mortgage debt against Darling as the oratrix agreed in writing to account for it, whether barred by the Statute of Limitations or not. We see no rea
Decree reversed and cause remanded.